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Maintaining H-1B status while AOS is pending

What is a H-1B Visa?

H-1B visas allow U.S. employers to hire foreign workers temporarily in specialty occupations. H-1B visas fit into the category of employment “H” visas because it is for non-immigrant workers. H-1B visas are specifically for workers in certain specialty occupations who wish to be employed in the U.S. temporarily. A worker using a H-1B visa cannot stay in the U.S. permanently.

What is Adjustment of Status (AOS)? 

Adjustment of status (AOS) is the process by which individuals who are in the United States on a temporary basis through a nonimmigration visa, such as the H-1B visa, can gain permanent residency status and receive a Green Card while staying in the United States throughout the adjustment process. 

Basic Requirements for Maintaining H-1B Status

H-1B visa holders must follow certain requirements regardless of whether they are attempting to adjust their status. Generally, H-1B visa holders are required to: 

  • maintain a valid passport; 
  • work only in employment described in the H-1B petition approved by the United States Citizenship and Immigration Services (USCIS); 
  • work only in the location listed in the Labor Condition Application (LCA) approved by the Department of Labor; 
  • work only during the period of validity listed on the approved H-1B petition and the LCA; 
  • complete the stay in the United States by the date specified on Form I-797, Notice of Action (H-1B Approval Notice) and the most recent Form I-94, Request Travel History and Check Travel Compliance (record of revival); 
  • notify the USCIS of any change of address within 10 days of the change by filing Form AR-11 with the USCIS.

Why is it Important to Maintain H-1B Status During the Adjustment Process? 

Adjusting status can be a convenient alternative for Green Card seekers who are already in the United States and do not want to leave the United States to become lawful permanent residents through consular processing. However, due in part to limitations that restrict the amount of immigrant visas that can be issued per year and per country, the process to adjust status can be lengthy, extending beyond the validity period of the H-1B visa that Green Card applicant currently holds. 

Who Qualifies for an H-1B Extension When Adjusting Process? 

Generally, there are three situations where an H-1B non-immigrant visa holder may receive extensions to stay in the United States while adjusting their status 

Delays Due to Per Country Limitation

An extension of H-1B status can be granted to “any alien” who has (1) submitted a Form I-140 petition to obtain an Employment Based (EB-1, EB-2, or EB-3) visa; and (2) is eligible to be granted EB status if it were not for per-country immigrant visa limitations. This extension specifically applies to individuals under H-1B non-immigrant status who were prevented from filing for adjustment of status or whose application for adjustment of status remains pending because the individual’s priority date has not been reached, due to per-country limitations. 

Individuals whose Form I-140 has been approved, but have not yet reached their priority date, can have a H-1B extension filed on their behalf in three-year increments until they are eligible to file an application for adjustment of status or adjustment of status has been fully adjudicated. There is no limit on the number of extensions that can be granted, though each extension is capped at three years. 

Even if an individual has moved onto another non-immigrant visa, or has left the United States, he or she can seek an extension beyond the six years allowed under the H-1B visa if the individual otherwise qualifies for the H-1B visa. Moreover, an individual may qualify for this extension even if he or she is going through consular processing, as opposed to adjustment of status, 

Delays Due to Lengthy Adjudications

The H-1B non-immigrant visa is valid for three years, and can be extended for an additional three for a total of six years. A petition to extend should be submitted at most 6 months prior to the end of the first three period. H-1B visa holders who have submitted a labor certification or the Form I-140 to adjust their status, and are up against the six year maximum for the H-1B visa, can file for additional extensions while their adjustment of status is adjudicated.

To qualify for this type of extension, the labor certification or Form I-140 must have been filed at least 365 days ago. If approved, the H-1B visa extension is in increments of one year until a final decision is reached on the visa holder’s Form I-485, Application to Register Permanent Residence or Adjust Status. While a general extension for a H-1B visa cannot be applied for until only 6 months remain under the visa, an extension of a H-1B visa can be filed on or before the 6 month date so long the labor certification or Form I-140 was filed at least 365 days ago. 

Even if a H-1B visa holder needs to change his or her employer during the adjustment process, he or she is eligible for an extension so long as the approved or pending Form I-140 remains valid. Under this extension rule, an individual may qualify for this extension even if he or she is going through consular processing, as opposed to adjustment of status, 

Switching Employers During Lengthy Adjudications

Individuals who have petitioned for adjustment of status to an EB visa can switch jobs or employers if they have an approved Form I-140 and a petition for adjustment of status was filed and has been pending for 180 days or more. 

In order for a job change to qualify under this rule, the job the visa holder is switching to must be the same or similar to the job for which the visa holder initially received a visa. Thus, if the visa holder’s employer withdraws its petition more than 180 days after approval of the Form I‐140 immigrant visa petition or after Form I‐485 application was filed, there is no revocation, and the individual can proceed with his or her immigration and port the process to new employment.

To determine whether or not the applicant’s new job is the same or similar, the USCIS will evaluate a variety of factors, including: 

  • How the jobs compare in the the Department of Labor’s (DOL) Standard Occupational Classification (SOC); 
  • The required skills, training, education, experience, licenses or certifications for the job; 
  • How the wages associated with the each job compare; 
  • The job duties of both jobs; 
  • Any other relevant or credible evidence submitted by the applicant

Do Extensions Apply to Family of H-1B Visa Holders? 

Family members of H-1B visa holders (H-4 visa holders) are eligible to stay in the United States based on the H-1B visa holder’s eligibility to stay in the United States. However, an H-4 visa holder must concurrently file for extensions to stay in the United States when the H-1B visa holder applies. 

Regaining H-1B Status After Expiration 

H-1B visa holders whose status has expired may try to regain H-1B status if they can show: that the H-1B visa holder was delayed in filing for a visa extension due to extraordinary circumstances that were outside the visa holder’s control; and the visa holder has not violated his or her non-immigrant status, remains a bona fide non-immigrant, and is not subject to removal proceedings or deportation. 

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Sweta Khandelwal

Sweta completed her Masters in Law from the University of California, Los Angeles and her JD from the Faculty of Law, Delhi University in India and has been practicing law for 15+ years getting visas, green cards, and citizenship for 1000+ clients, 100+ companies across 50+ nationalities.

Sweta has been recognized as a ” Super Lawyer, Rising Star,” and as amongst the ” Top 40 under 40″ immigration attorneys in California (American Society of Legal Advocates). She is also the recipient of the Advocacy Award by the American Immigration Lawyers Association.

Sweta is also a chartered accountant — the equivalent of a CPA. This makes her uniquely positioned to understand the immigration needs of her business clients in the broader context of their corporate objectives.

Sweta is actively involved with immigration issues and immigrant communities in various capacities. She has assumed key roles at the American Immigration Lawyers Association (AILA), both at the local and national level. She has been a past chair at the Santa Clara Valley Chapter at AILA and has also been involved in various practice area committees at AILA National. Sweta has addressed multiple conferences/forums in the United States and worldwide on immigration and business issues.

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