H1B Visa Validity Rules

As the most oversubscribed US work visa, the H1B allows the holder to live and work in the US for up to six years, before they can become eligible for a Green Card. However, the rules on H1B validity periods can quickly become confusing, when considering practical questions such as when you’re allowed to travel to the US, when you can start your job and when you’ll need to apply for a visa extension.

In this guide, we explain the H1B visa validity rules, detailing key stages such as application, employment start date and renewing your status.

 

What is the H1B visa validity period?

The H1B visa is a nonimmigrant classification most commonly used by overseas nationals looking to perform a role in the United States in a specialty occupation. A specialty occupation refers to job roles in fields requiring highly specialized knowledge, although most graduate level jobs that normally require at least a bachelor’s degree as a minimum entry requirement can qualify as a specialty occupation.

The H1B visa also extends to those who will be performing services of exceptional merit and ability relating to a US Department of Defense (DOD) cooperative research and development project or, alternatively, those who will be performing services in the United States as a fashion model of distinguished merit or ability.

When applying as an H1B specialty occupation worker or as a fashion model (also known as H1B3 status), you may be admitted to the USA for an initial period of up to 3 years. In contrast, if approved as a DOD Researcher and Development Project Worker (also known as H1B2 status, where the H1B2 visa is highly competitive with only very limited numbers of visas granted each year), this will initially be approved by USCIS for up to 5 years.

 

When can you travel to the USA if granted an H1B visa?

A visa in H1B classification will provide permission for the successful visa-holder to work in the United States within their sponsored job role. This means that if you are approved for an H1B visa to work in a specialty occupation, or for an H1B2 or H1B3 visa to work as either an DOD Researcher and Development Project Worker or as a fashion model, you will be eligible to travel shortly prior to starting your new role in the United States.

The H1B/H1B2/H1B3 visas are petition-based visas, where your prospective employer will first be required to file an employment-based petition on your behalf with United States Citizenship and Immigration Services (USCIS). The H1B petition (using Form I-129, Petition for a Nonimmigrant Worker) must be approved by USCIS before you can apply for an H1B visa with your local US Embassy or Consulate, where USCIS must be satisfied that your proposed sponsored job role in the USA constitutes a specialty occupation, or other qualifying job role, and whether or not you are qualified to perform those services.

Once you are in possession of either the Notice of Action (Form I-797) or your petition receipt number, you can submit an online application (using Form DS-160, Online Nonimmigrant Visa Application) and schedule an in-person interview at the nearest Embassy or Consulate. If an H1B visa is approved during your consular interview, the average processing time is typically 5 to 7 working days, although at least a further 2 to 3 working days should be allowed for delivery of your passport containing the H1B visa.

It may not be possible to collect your passport in person from the US Embassy or Consulate, where your passport will instead be handed to the courier service for delivery directly to you as soon as your application for an H1B visa has been processed. However, once you are in receipt of your visa, you will be able to travel to the United States as an H1B visa-holder.

 

When can you start an H1B job role in the USA?

To apply for an H1B visa, you will first need the offer of a job in a specialty occupation or other qualifying role that meets the relevant requirements for this category of visa. This is because your prospective US-based employer will be required to petition to USCIS on your behalf, and only once a petition has been approved by USCIS can you submit your application for an H1B visa to be able to travel to the United States to start your new job.

You should apply for an H1B visa well in advance of your planned travel to the USA, as it can take several months to obtain a nonimmigrant visa at some US Embassies and Consulates, with often lengthy wait times when scheduling your visa interview. Prior to applying, you must also ensure that your passport is valid for at least 6 months beyond the date that you plan to remain in your sponsored job role in the United States.

Having been approved for an H1B visa, you can travel to the United States to start your proposed new role upon receipt of your passport containing your visa although, when entering the USA in H1B status for the first time, you will not be allowed to enter more than 10 days prior to the start date indicated on your Form I-797 approval notice.

An H1B visa does not necessarily guarantee entry into the United States, where you will still need permission from US Customs and Border Protection (CBP) officials on arrival at a US port of entry. In addition to your passport and a valid H1B visa, you must present your Form I-797 on arrival. It is also advisable to have in your possession evidence of your sponsored employment and start date. However, provided CBP officers are satisfied that you are genuinely seeking to come to the United States for the purpose permitted as an H1B visa-holder, they will complete your electronic travel record (I-94, Arrival/Departure Record) to show admission in H1B classification and to indicate your date of entry.

Your electronic travel record will also indicate the date by which you will be required to leave the USA, where this date should match the end date on your Form I-797.

 

When do you need to renew an H1B visa?

If you are looking to stay beyond your initial period of validity in H1B classification, you will need to renew your visa prior to expiry of your existing H1B status. However, this will require your employer to file a fresh petition with USCIS on your behalf. The maximum length of stay in H1B status is generally 6 years, although if you are participating in a DOD research and development project you may stay for a maximum of 10 years.

However, there are exceptions as an H1B specialty occupation worker or fashion model, where you may be able to extend your stay for a period of more than 6 years. For example, you may be eligible for an H1B extension beyond the 6th year if at least 365 days have elapsed since a labour certification was filed with the US Department of Labor (DOL) on your behalf, in cases where certification is required, or 365 days have elapsed from when an immigrant visa petition was filed with USCIS. However, you must file an adjustment of status application or apply for a green card within a year of an immigrant visa being authorised for issuance. In its discretion, USCIS may excuse a failure to file, but only if you establish that the failure to apply earlier was due to circumstances beyond your control.

When considering whether to excuse any failure to file within a year, USCIS will look at all of the circumstances involved. These circumstances include whether there was a change of employment, if this was voluntary, when and why the employment with the previous employer ended, and what steps you and your new employer took following your change of employment to file an adjustment of status application or to apply for an immigrant visa.

If you are in H1B status, you may also be eligible for an H1B extension beyond the 6th year if you are the beneficiary of an approved petition for an immigrant visa under sections 203(b)(1), (2) or (3) of the Immigration and Nationality Act and are eligible to be granted immigrant status but for application of the “per country” or global limitations on immigrant visas. This is where you are applying for an immigrant visa on the basis of having extraordinary ability in the sciences, arts, education, business or athletics; as a member of the professions holding an advanced degree or of exceptional ability; or as a skilled worker, professional or other worker. In these cases, you must be able to demonstrate such visa unavailability as of the date that your H1B petition is filed with USCIS.

USCIS may approve an H1B petition in increments of 1 year beyond the initial 6-year maximum if 365 days or more have elapsed since the filing of a labour certification or an immigrant petition on your behalf. Additionally, USCIS may approve an H1B petition for an unlimited number of times beyond the 6-year minimum, this time in increments of 3 years, if you are the beneficiary of an approved employment-based immigrant petition but unable to adjust your status due to unavailability of visa numbers.

 

How renew an H1B visa

When applying to renew an H1B visa, your employer will need to file a fresh Form I-129 petition on your behalf with USCIS. Your extension petition must be received by USCIS no earlier than 6 months and no later than the last day of your current H1B status. However, once received and receipted by USCIS, your H1B employment authorisation will be considered temporarily extended for 240 days while USCIS reviews that petition.

It is also possible for certain H1B nonimmigrants to switch employers in H1B status. The new employer must again file an H1B petition, although you can commence your new job role under the H1B portability rules while USCIS is processing the new petition, so long as your new employer has been issued with an I-797C Notice of Action to prove receipt.

If you are eligible for H1B portability, your employment will be authorised until USCIS has made a decision on the Form I-129 petition. If approved, you can continue working for your new employer for the period of time specified on the new petition approval. If denied, you can continue working for your previous employer if your prior period of authorised employment is still valid, but your authorisation to work based on portability will cease.

 

When can you apply for a green card with an H1B visa?

The H1B visa is what is known as a dual-intent visa, where visa-holders may be able to apply for lawful permanent residency, also known as a green card. For many nonimmigrant visas, you must maintain an intention to leave at the end of your stay. However, with the H1B dual intent visa, this will allow you to lawfully enter the United States under a time-limited nonimmigrant visa, but while still having immigrant intent. This means that you may be eligible for a green card without having to leave the country to complete your immigrant visa processing.

Where seeking permanent residency on the basis of US-based employment, an immigrant petition would need to be filed on your behalf by your US employer (using Form I-140, Immigrant Petition for Alien Workers). You would then need to apply for an immigrant visa (using Form I-485, Application to Register Permanent Residence or Adjust Status).

 

How long does it take to get a green card from H1B status?

It can take several months, if not longer, to apply for a green card, where a petition must be approved before making an application to register permanent residence. Generally, the maximum length of stay in H1B status is 6 years, although you may be able to request an extension, for example, in 1-year increments if your Form I-140 was filed a year prior to the beginning of your exemption from the normal 6-year limit. In these circumstances, you will have unlimited extensions until you can complete the green card application process.

 

Need assistance?

NNU Immigration are specialist attorneys with expertise in US work visa applications such as the H1B. For expert guidance on any aspect of the H1B classification, including renewals, change of employer or Green Card applications, contact us.

 

H1B visa validity FAQs

How long is a H-1B visa valid for?

The maximum length of stay in H-1B status as a specialty occupation worker or fashion model is generally 6 years, although you can stay for a maximum of 10 years as a Department of Defence research and development project worker.

 

What happens after 6 years of H-1B visa?

Generally, the maximum length of stay in H-1B status is 6 years, although there are exceptions to this rule, where you may be eligible for extensions in 1-year increments if applying for an immigrant visa but your petition is delayed.

 

What is the lifetime of H-1B visa?

The most you can usually stay in the United States as a speciality occupation worker on an H-1B visa is 6 years. However, as a dual-intent visa, you may be eligible to apply for a green card from the USA.

 

Is H-1B maximum for 6 years?

The maximum period that overseas nationals can usually stay in H-1B nonimmigrant status in the United States is 6 years, although they may be eligible to apply for an immigrant visa (green card) on the basis of their US-based employment.

This article does not constitute direct legal advice and is for informational purposes only.