If you are a U.S. employer hiring a foreign worker maintaining the H-1B status through another employer, you must file an H-1B transfer petition. It is also necessary to check how long the candidate remains in the H-1B status. This status is typically limited to a maximum six-year stay.
Transferring employees with previously approved I-140 petitions from previous employers is easy. However, do not depend too heavily on extending the H-1B visa that an earlier employer approved.
Employees can generally maintain H-1B status for a maximum of six years. Initially, H-1B beneficiaries are granted H-1B status for three years, but extending to the max of six years is possible. In addition, two exceptions allow employees to extend their benefits beyond the maximum. These exceptions are part of the American Competitiveness in the Twenty-First Century Act (AC21).
One of the exceptions allows the beneficiary to obtain a three-year extension beyond the sixth year. This exception requires an approved I-140 with no current priority date, as shown in the Final Actions Date chart included in the Visa Bulletin.
The second exception applies to people who have had a PERM or I-140 filed for them 365 or more days ago. This exception requires no final decision to deny the PERM if it is an I-140 or I-485. However, the I-485 must not be approved to apply.
Extending H-1B status can be particularly important for beneficiaries from China or India. These beneficiaries often have very long wait times for a visa number. These two exceptions can allow many beneficiaries to obtain an extension.
As shown by the Final Actions Date, found in the chart in the Visa Bulletin, employees with priority dates for at least a year who haven’t filed an I-485 application cannot obtain the extension.
It is necessary to monitor the priority date of employees. If an employee has a current date and needs to extend their H-1B status, they may not be able to do so.
Employers that do hire H-1B workers will need to complete Form I-9. Unfortunately, many find this process complicated due to the frequently changing regulations. However, an electronic I-9 management system can make it easy to ensure uniform and accurate completion of these forms and keep them on hand for updates and inspections as needed.
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