H-1B Status Overview

H-1B status is reserved for individuals who come to the US to be employed in a specialty occupation. A specialty occupation is an occupation that requires, at a minimum, a bachelor’s degree in a specific field for entry into the occupation. Not all positions that require a bachelor’s degree are necessarily considered specialty occupations; an occupation is broader than an individual position.

To qualify for H-1B status, the employer must pay a wage that is equal to or higher than the higher of the Prevailing Wage and the Actual Wage. The exact wage requirement varies from position to position.

H-1B status is position and employer-specific. This means that someone in H-1B status may only work in the exact position with the employer for which the H-1B petition was filed.

The maximum duration of H-1B status is six (6) years, minus any time spent in L-status. Any time that is spent outside of the US while one’s H-1B status documents are valid can be “recaptured” as long as the absence can be documented. It is possible to extend one’s H-1B status beyond the maximum of six years if the foreign national is in the employment-based green card process and the green card process was started in time.

Having a green card application pending is not an impediment to one’s H-1B status as H-1B status is a “dual intent” status. This means that, while technically a non-immigrant status, applicants can have the intent to remain in the US as immigrants.

To qualify for a new period of H-1B status after exhausting the six year maximum, the foreign national has to spend a full year outside of the US.

 
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