What are the Limitations of the H-1B Visa?

Most visas, whether for employment, business or tourism purposes, have some specific limitations. The main limitation of an H-1B status visa is that it is temporary and may only be approved to begin with for up to 3 years. It may be renewed after the three years is up for a further three years. After having stayed six years in the US on an H-1B status visa, the person has to leave the country for no less than one year before H-1B status can occur again.

There are situations where extensions beyond the six year limit can be approved, which include:

• A holder of an H-1B status who has an approved EB-1, EB-2 or EB-3 visa petition, and is awaiting the new visa quota so that an application can be made for a status adjustment. The person may apply for an H1-B extension to the USCIS over the the six-year limit for 3 years at a time until his or her application for adjustment of status has been finalized. There is no guarantee that the USCIS will instantly approve such applications. 
• A petitioner for NIW or EB-1 classification, whose petition has been filed for more than 365 days, might be able to file for an H-1B extension passed the six-year limit but for only one year at a time.

Other limitations include:

• The H-1B quota is a limitation in itself for prospective H-1B status employees and this year (2014) stood at 85, 0000. These places were filled within a week of the start of the quota period
• Employment cannot start begin until the petition by the potential employer has been approved by the USCIS. 
• Spouse and children do not have the right to work (though legislation is being proposed to change this outdated rule)
• Permanent residence status is not a guarantee for an H-1B holder
• An H-1B visa holder can lose his or her job with no reason given
• The H-1B holder will lose the right to remain in the USA if employment is terminated but sometimes the USCIS will grant a 10 day grace period.
• The U.S. employer has the right to displace an H-1B worker with a qualified U.S. worker. The H-1B worker cannot claim discrimination as a U.S. employer is given the statutory right, even though not the obligation, to favor a U.S. worker over an H-1B worker. Once an H-1B employee has been hired, s/he has to be treated at all times in the same way as a U.S. worker.

Overall, if the H1-B visa holder is aware of the limitations there is no reason why he or she can’t derive substantial benefits from being on an H-1B.

Return to "The H-1B Visa" to learn more.