H-1B is a non-immigrant Visa given to foreign workers to work in the United States on a temporary basis. As per the H1B Visa regulations, a US-based employer should file a petition to hire a foreign worker. In other words, an employer is the petitioner while an alien is the beneficiary. A foreign worker cannot file a petition on his behalf for work opportunities in the United States. An employer is required to submit form 9035 or LCA (Labor Condition Application) to the Department of Labor. An employer has to attest that the foreign worker (beneficiary) will be paid prevailing wages.
It is important to note that only specialty workers can avail of H-1B Visas. An H1B Visa holder should possess a bachelors or its equivalent degree to be eligible for employment in the United States. The maximum duration for which an H1-B Visa is given is six years. An H1B holder is initially given permission to stay in the United States for three years. After the lapse of three years, an H1B holder can opt for an extension by another three years. Upon completion of six years, an H1B holder can opt for renewal of his H1B status. It is important to note that renewal of H1B Visas is not subject to the prevailing cap vis-a-vis the number of H1B Visas approved every year.
Renewal of H1B Visas
An H1 B Visa can be renewed beyond the maximum duration of six years under sections AC 21 104 C (American Competitiveness in the twenty-first Century Act) and AC 21 106 (a).
Renewal of H1 B Visas under Sections AC 21 104 C
Under Section AC 21 104 C, an H1 Visa holder can apply for renewal of his Visa under the following conditions:
- Employment-based Green Card Petition filed on behalf of an H1B Visa holder under EB1, EB2 or EB3 slots
- Approved I-140 petitions but ineligible to file an Adjustment of Status application for hailing from a country (China or India in most cases) with no current priority date (Visa number is unavailable)
- A dependent of an H1B Visa holder can avail of H4 status after filing a petition on behalf of the principal foreign worker and submission of form I-539, application to change the status of the Visa, supporting documents and fees.
Under section American Competitiveness in the twenty-first Century Act 21 106 (a), an H1B Visa holder can apply for a renewal under the following conditions:
- Beneficiary of Adjustment of Status application
- Beneficiary of I-140 or Employment-based immigration petition
- Labour certification application was filed 1 year ago
- I-140 or EB Immigration Petition was filed 1 year ago
It is important to note that an H1B Visa holder can get extensions for a period of one year pending decision on the green card.
Form I-129 should be filed by either a current or new employer (petitioner) for initiating the process of Visa renewal for the beneficiary. Dependents can avail of H4 status after filing a petition on behalf of the foreign worker (principal), submission of form I-539, supporting documents and fees.
It is important to note that the spouse of the H1B principal foreign worker cannot extend his or her stay in the United States upon reaching the allotted limit of six years. The spouse can, however, change his or her status to H4 and can continue to live in the United States pending adjudication of the green card.
Documentation Required for H1B Visa renewal
The following table shows the documents required for renewal for both the employer and the employee
|Offer Letter (Job) with details of job title and remuneration. The offer letter should be signed by both the foreign worker and the employer (copy)||Experience certificates from ex-employers|
|Articles of Incorporation (copy)||US Visas|
|Brochure of the company (copy)||Form I-94|
|Annual Report (copy)||Diploma certificates, transcripts and Academic Evaluation of Foreign Degree|
|Job Profile/Description (detailed)||Resume|
|-||Pay slips (latest)|