Most people who want to work in the United States will only be able to qualify for either H-1B or L-1 status, although you can find a list of other work visas on the general FAQ. Foreign nationals who already live in the US are usually more interested in H-1B status, since obtaining L-1 status would require them to spend a year working outside the US first. In addition, since L-1 status is only valid with respect to the particular company the alien has worked at for a year abroad, it's not possible to switch companies while in L-1 status without leaving the US or switching to H-1B [1]. Even people who already hold L-1 status will often need to switch to H-1B in order to be able to continue working in the US for longer than five years (see below).
However, if you are a citizen of Chile or Singapore, see the FAQ for an alternative that may be easier to obtain.
H-1B is a petition-based classification; an H-1B visa or change of status to H-1B cannot be granted unless the employer has filed an appropriate petition [28]. The form that the employer must use for filing a petition is called Form I-129 [29]. You don't have to worry about this form too much, since it will always be prepared by your employer or by a lawyer on your employer's behalf. However, we will make occasional references to it. If the petition is approved, the employer will receive a Form I-797 [30] and will usually forward the original to the prospective H-1B worker, keeping a copy for themselves.
If the beneficiary (i.e., the alien seeking to be employed in H-1B status) is abroad, they are usually required to apply for a visa. Visa-exempt individuals, such as Canadians, must bring the original I-797 or a copy to the port of entry when applying for admission [31]. If the beneficiary is already in the United States, the petitioner may request to change the beneficiary's status to H-1B instead of requiring them to leave the US and apply for an H-1B visa [32]. The adjudication of such a request is a two-step process, in which USCIS first determines whether the beneficiary qualifies for H-1B classification, and then determines whether the beneficiary qualifies to change their status to H-1B while in the United States [33]. Usually, both steps will be approved, in which case USCIS sends Form I-797A, containing an I-94 indicating the new H-1B status and authorized period of stay [34]. However, it's possible that the petition is approved while the change of status is denied—typically because USCIS has determined that the beneficiary has violated their status, making them ineligible for a change of status—and the beneficiary must usually leave the United States and apply for a visa or for status at the port of entry.
You may be eligible for H-1B status if an employer sponsors you for a position in a "specialty occupation", which is an occupation that generally requires a bachelor's degree or equivalent training or progressive experience. See this page by USCIS for more information.
You may have noticed that this is a subjective criterion. Since many software engineers don't have a bachelor's degree, does software engineering qualify as a specialty occupation? For now, most software engineers are eligible for H-1B status, although there has been a recent uptick in RFEs (Requests for Evidence) issued by USCIS, alleging that the position for which the foreign worker is sought is not a specialty occupation.
USCIS does not release data on H-1B petition rejections broken down by occupation, so for now, the only way to get a sense of how good your chances are is to simply try to find out whether companies are sponsoring H-1B workers in your occupation. (In general, employers won't attempt to sponsor H-1B workers unless their experience is that there is a good chance of success; it is easier to hire U.S. workers instead.) However, because of the subjectivity of the criteria, the US government may change its opinion in the future about which occupations are specialty occupations.
The Department of Labor publishes an annual report that includes, among other information, a list of employers that receive the greatest number of nonimmigrant labor certifications. The top 10 from the 2016 report are reproduced below:
- Cognizant
- Microsoft
- Intel
- Amazon
- Infosys
- Apple
- Cisco
- Wipro
- Oracle
By statute, only a limited number of people can be granted H-1B status for the first time during each fiscal year (starting on Oct 1). Namely, there is a quota of 65,000 [2] plus an additional quota of 20,000 that only people with a master's degree from a US institution can qualify for [11], making a total of 85,000 per year. (There are some exceptions to the quota; see below.)
In recent years there have been more than 85,000 applicants per year. You might think that this would lead to long queues. However, under current regulations, an employer can file a petition for an H-1B worker at most 6 months before they need the worker to start work [9]. This means that in order to gain access to a visa under the quota for the new fiscal year beginning on Oct 1, the employer can only file starting on Apr 1. Therefore, all the employers who want to hire H-1Bs in that year have to file in the first week of April, otherwise the entire quota will be exhausted by other applications that were filed earlier! As a result, come the first week of April each year, USCIS is inundated with over 100,000 H-1B petitions [3–8]. Regulations provide that when this situation occurs, USCIS must randomly reject some of the petitions [10]. If a petition on your behalf is selected during this random selection process, you are said to have "won the lottery" (although it's still possible that USCIS will reject the petition on merits). Otherwise, you lose the lottery, and will have to wait until next April to try again.
- Aliens "employed at an institution of higher education... or a related or affiliated nonprofit entity" are not subject to numerical limitation [12]. Therefore, university faculty generally don't have any trouble getting H-1B visas. Similarly, aliens "employed at a nonprofit research organization or a governmental research organization" are exempt from the cap.
- Aliens who have already been counted against the cap are, for the next 6 years, not subject to the cap when seeking admission in H-1B status or switching to another employer wishing to sponsor them for H-1B status [13]. Days spent outside the US do not count against the 6 years [14], so winning the lottery qualifies you up to 6 years of total time in the US in H-1B status, assuming that you also qualify on the merits and are not inadmissible.
- There are circumstances in which H-1B time can be extended beyond 6 years (see below).
Suppose an employer filed a petition for you in the lottery, the petition was approved, but you didn't actually obtain H-1B status. Some possible situations where this happens are:
- Your case was filed as a change of status, but your employment with the petitioner was terminated prior to Oct 1, so the change of status did not take place.
- You never worked for the petitioning employer. They had intended for you to join them on Oct 1, but you decided not to.
- Your case was filed under consular processing. You were still in the US on Oct 1, working for the employer in some other status. Before you had the chance to travel and return in H-1B status, your employment was terminated.
- Your case was filed under consular processing. You are outside the US, and you were going to travel to the US on or after Oct 1 in order to work for the petitioning employer, but before you had the chance to do so, they withdrew their offer.
The question is: based on the fact that you had won the lottery and you had an H-1B petition approved at one point, can a new employer file a cap-exempt H-1B petition for you?
The answer to this question is, unfortunately, unclear, with different sources making different claims. USCIS does not appear to have issued official guidance regarding these questions. Thus, it is advisable for aliens seeking H-1B status to do their best to ensure that they acquire H-1B status as soon as possible after winning the lottery in order to guarantee that they are counted against the cap
and will be cap-exempt for the next 6 years, even if this means staying at an employer you hate for 6 months waiting for October to start.
If you did acquire H-1B status, then even if your employment is terminated shortly thereafter, you are definitely counted under the cap [43] and your cap exemption is safe. (The only exception to this rule would be if USCIS revoked the petition for fraud, misrepresentation, or because it was not legally eligible to be approved in the first place.)
We simply quote the text of the relevant regulation [41]:
An H-1B alien in a specialty occupation or an alien of distinguished merit and ability who has spent six years in the United States under section 101(a)(15)(H) and/or (L) of the Act may not seek extension, change status, or be readmitted to the United States under section 101(a)(15) (H) or (L) of the Act unless the alien has resided and been physically present outside the United States, except for brief trips for business or pleasure, for the immediate prior year.
(Observe that it says "(H) and/or (L)"; this means that time spent in L-1 status counts against the 6-year limit on H-1B time.)
There are some exceptions to the 6-year limitation in cases where the alien is being sponsored for a green card, which are discussed in more detail below.
Once the alien has resided outside the US for one year, they can qualify for H-1B status again, but are no longer cap-exempt as described in [13] and must go through the lottery again in order to obtain a new allotment of up to 6 years in H-1B status.
As discussed previously, once you are counted against the cap, you are entitled to not be counted against the cap again until you've used up your total 6 years, and days spent outside the US do not count toward that limit [14]. Days spent outside the US are said to be eligible for "recapture": that is, a petition for extension of H-1B status can request an extension beyond the 6th anniversary of the alien's initial admission in H-1B status by demonstrating that the alien was outside the US for some of the 6 year period. According to regulations [14]:
It is the H-1B petitioner's burden to request and demonstrate the specific amount of time for recapture on behalf of the beneficiary. The beneficiary may provide appropriate evidence, such as copies of passport stamps, Arrival-Departure Records (Form I-94), or airline tickets, together with a chart, indicating the dates spent outside of the United States, and referencing the relevant independent documentary evidence, when seeking to recapture the alien's time spent outside the United States. Based on the evidence provided, USCIS may grant all, part, or none of the recapture period requested.
Some immigration lawyers appear to believe that the opportunity to request recapture expires on the 6th anniversary. However, this is contradicted by the USCIS Adjudicator's Field Manual, which gives the following example [15]:
an alien who spent five years in the United States in H-1B status (from January 1, 1999 - December 31, 2004), and then remained outside the United States for all of 2005, could seek to be admitted in January 2006 for the “remainder” of the initial six-year period, i.e., a total of one year."
Historically, in the random selection process, cap-subject petitions for an alien with a master's degree or higher from a US institution were first entered into the lottery for the 20,000 visas available under the master's degree exemption. Petitions not selected in the master's lottery were then entered in the general lottery for 65,000 visas together with all the remaining cap-subject petitions [5–8][56]. Starting on April 1, 2019 (the first day to file cap-subject petitions for FY 2020), the order of the two lotteries was reversed [57][58], increasing the probability that an applicant with a master's or higher from a US institution would win, and decreasing the probability for other applicants.
Therefore, we should be able to estimate the chances of winning the lottery in previous years based on data provided by USCIS. Unfortunately, this is not as straightforward as it looks, because while USCIS has published the number of cap-subject petitions received in recent years [3–8], they don't say how many of them are for beneficiaries with a US master's or higher. Based on data available in [16], let us make the very crude estimate that the fraction of cap-subject petitions filed in FY N that qualified for the master's cap equals the fraction of approved petitions for initial employment in FY N-1 that were for beneficiaries with a master's degree or higher. (Note that petitions for the beginning of FY N are filed in April of FY N-1.) We therefore get the following estimates:
| Fiscal year | Number of cap-subject petitions or registrations filed | Estimated number of petitions or registrations filed under master's cap | Chance of winning lottery with US master's or higher | Chance of winning lottery without US master's |
|---|---|---|---|---|
| 2014 | 124,000 | 64,800 | 74% | 62% |
| 2015 | 172,500 | 93,100 | 55% | 43% |
| 2016 | 233,000 | 131,400 | 41% | 31% |
| 2017 | 236,000 | 142,000 | 40% | 30% |
| 2018 | 199,000 | 112,300 | 48% | 36% |
| 2019 | 190,098 | ? | ? | ? |
| 2020 | 201,011 | ? | ? | ? |
| 2021 | 275,000 | 126,500 | 39% | 24% |
Note that these figures are inaccurate not only due to the approximation discussed above, but also because not all petitions selected in the lottery are approved (the existence of someone else's petition that is denied on its merits, in theory, doesn't reduce your chances of winning the lottery, since it doesn't consume any quota), because an alien with multiple petitions approved is counted only once, and because there are special rules for Chile and Singapore relating to H-1B1 visas [55]. So, you really should take the numbers in the chart above as very crude approximations.
It's not clear why the number of petitions filed dropped between FY 2017 and FY 2018, although some reasonable hypotheses are:
- The low probability of winning the lottery discouraged employers from filing cap-subject petitions for new candidates for employment.
- The outcome of the 2016 presidential election discouraged both employers and candidates from trying for a visa that might come under tighter scrutiny. (Note that cap-subject petitions for FY 2017 were filed in April 2016, before the election, so the timing makes sense.)
- The outcome of the 2016 presidential election caused some foreigners to change their minds about whether they wanted to live in the US.
- Uncertainty over whether the new administration would stop issuing EADs to spouses of H-1B workers discouraged married and engaged individuals from seeking H-1B visas.
In 2020, USCIS published the actual percentage of cap-subject petitions eligible for the advanced degree exemption for FY 2021 [62]. If they continue to do so in following years, it should help to build a more accurate picture regarding the chances of winning the lottery.
I've heard people try to increase their chances in the lottery by having multiple companies submit H-1B petitions for them.
Federal regulations state that when the random selection procedure must be used, it is petitions that are sampled randomly [10]. USCIS appears to acknowledge the possibility that having multiple petitions in the lottery can be used as a tactic to increase one's chances of winning, which is the reason why they adopted a policy [17] that if one employer submits multiple petitions for the same alien, all such petitions will be denied [19]. This is the case even if the multiple petitions are for different roles [18].
Evidently, USCIS has the ability to detect duplicate petitions (presumably using some subset of the alien's name, country of birth, I-94 number, and passport number), but there appears to be no evidence for the claim that USCIS uses this detection algorithm to collapse all petitions into a single "lottery ticket". Therefore, it appears that you can, in fact, increase your chances of winning the lottery by having multiple petitions filed on your behalf, provided that USCIS is convinced they are not duplicative.
However, as discussed above, you need multiple different employers to file H-1B petitions for you in April, otherwise your chances will drop to zero. Furthermore, if USCIS finds that "related entities" do not have a "legitimate business need" to file petitions on behalf of the same alien, they will likewise deny all such petitions [18][19]. In the case Matter of S- Inc., the USCIS Administrative Appeals Office determined that even if two companies do not have any legal relationship with each other, they can still be considered "related entities" if they appear to be "acting in concert" to file multiple petitions for the same alien "for the same full-time position with the same end client through the same vendors during the same time frame" [20].
Thus, in order to use this tactic, you need to get two genuinely distinct offers. For example, if you are graduating soon, and you have applied to both Google, Inc. and Facebook, Inc. as a new grad software engineer, both have extended you an offer and both are willing to sponsor you for a work visa and enter you in the H-1B lottery, and you accept both offers and fill out the required paperwork, then you'd double your chances of having at least one petition approved, compared to someone else who only has one petition filed on their behalf. (This tactic does not appear to be used often, possibly because candidates don't like to be dishonest by accepting multiple offers and risk burning bridges.)
Unless they have an EAD, an H-1B alien is only permitted to work for a petitioning employer [21], but can work for multiple petitioning employers concurrently [22]. Thus, when an H-1B worker wants to work for an employer other than the employer that sponsored their current status, the new employer must file an H-1B petition, and the employee may choose to work for both employers concurrently, or to quit their current job and start working for the new employer.
Due to 8 CFR 214.2(h)(4)(ii), a petitioning employer must have an "employer-employee relationship" with the beneficiary, and USCIS has interpreted this requirement to include the "right to control". If you're self-employed, then there's no entity other than yourself that has the right to control your work, so this requirement would not be satisfied [23]. Since, as discussed in the previous answer, an H-1B worker isn't permitted to engage in any employment other than for a petitioning employer [21], this effectively prohibits self-employment while in H-1B status (again, unless you have an EAD; see below).
This does not mean that H-1B workers aren't permitted to start companies, but if they want to be able to work for their startup while in H-1B status, there must be a legal structure in which an employer-employee relationship exists according to USCIS policy. For example, if you co-found a startup with a US citizen, in which the US citizen is the CEO and you are the CTO, and you report directly to the CEO, with the CEO having the power to fire you, then this startup may be able to sponsor you for H-1B status. It should go without saying that if you're planning on getting your work authorization through your startup, you should consult an immigration lawyer who is experienced with drafting H-1B petitions for startups, and have them advise you on what kind of legal structure would allow you to achieve your objectives.
Since, as discussed above, H-1B nonimmigrants are generally authorized only to work for a sponsoring employer, if an H-1B worker wants to change jobs, the new company must be one that is willing to sponsor H-1Bs, and must file an H-1B petition (Form I-129) on behalf of the prospective employee. Therefore, the new job must also be in a speciality occupation and is subject to the same evidentiary requirements as any previous H-1B petitions. However, as previously discussed, an alien who has already been counted against the H-1B cap does not need to enter the lottery again until they've used up 6 years of H-1B time [13]. This means that switching jobs while already in H-1B status tends to be a quicker process than getting an H-1B for your first job in the US.
If the H-1B worker wants to change employers without leaving the US, the new employer should file for an extension of stay on the I-129 petition [35]. (Note that sometimes this doesn't actually lengthen the period for which the beneficiary is allowed to remain in the US, but it is nonetheless considered an application for extension of stay. Presumably the logic employed by USCIS here is that the alien's authorized period of stay in H-1B status with respect to the new employer is initially zero, and then becomes nonzero once the petition is approved.)
The adjudication of the new employer's I-129 petition is a two-step process, in which USCIS first determines whether the beneficiary qualifies for H-1B classification with the new job offered, and then determines whether the beneficiary qualifies to extend their H-1B status while remaining in the United States [38]. Usually, both steps will be approved, in which case USCIS sends Form I-797A, containing an I-94 reflecting the extension granted [72]. However, it's possible that the petition is approved while the extension of stay is denied—typically because USCIS has determined that the beneficiary has violated their status, making them ineligible for an extension—and the beneficiary must usually leave the United States and re-enter using their H-1B visa (which may need to be renewed if it has expired or has been revoked).
In order to make it as easy as possible for H-1B workers to switch jobs, the AC21 Act included a provision, INA 214(n), that allows an H-1B worker to commence new employment as soon as the new employer files the H-1B petition; that is, it's not necessary to wait for the petition to be approved. However, in order to take advantage of this portability provision, the H-1B worker must meet the other conditions to be eligible for extension of stay, that is, they must be maintaining their H-1B status at the time of filing, and in particular must not have engaged in unauthorized employment [27][37][39]. If the petition is denied, the worker must stop working for the new employer [27]. Note that an H-1B worker may be eligible for a grace period after the end of their employment, and H-1B portability is available during the grace period (see below).
However, it should be emphasized that INA 214(n) doesn't actually grant H-1B status by itself. Suppose an alien was working at Company A, and then Company B filed a portability petition and the alien resigned from Company A. The alien is now availing themselves of INA 214(n). If the alien now moves from Company B to Company C, once again upon filing of a portability petition, then the Company B petition acts as a bridge
. If the Company B petition is now denied, then since the alien did not have valid H-1B status at the time the Company C petition is filed, the Company C petition must also be denied because the requirements for portability were not met in the Company C instance—USCIS refers to this as undercutting the bridge
. The fact that the alien was employment authorized under INA 214(n) and working for Company B at the time when the Company C petition was filed does not mean the alien qualified to use INA 214(n) with Company C, if the Company B petition ends up being denied. [42]
The regulations are mostly silent on the issue of transfer petitions with a "delayed" start date. For example, what happens if the transfer petition was filed on June 17, 2019, you left your original employer on June 28, 2019, but the new petition's requested start date is not until Aug 5, 2019? In such a situation, you cannot start working for the new employer until Aug 5 [37] but there is no indication of whether you can stay in the US until Aug 5 if your I-94 expires before Aug 5 (it would, of course, be safer to assume "no") or if you can travel out of the US and be readmitted before Aug 5 while the petition is still pending (again, it is safer to assume "no").
The H-1B worker can continue to use their valid, unexpired H-1B visa for admission to the United States after changing employers. Note that it is possible to renew a H-1B visa after a new petition has been approved (granting a new authorized validity period) but not while it is pending [40].
An H-1B nonimmigrant whose employment is terminated while their I-94 is still valid may be eligible for a grace period of up to 60 days. This grace period is usually available regardless of whether the employee quit, was laid off, or was dismissed for cause. The rules about the grace period are discussed in the general FAQ.
In particular, since an alien within a grace period is still considered to be maintaining status [61], that means that an H-1B nonimmigrant within a grace period may avail themselves of H-1B portability [27][37], that is, during the grace period, one can join a new employer upon the filing of a new H-1B petition, without needing to wait for it to be approved.
As previously noted, an H-1B transfer petition must be filed while the employee is maintaining their H-1B status, and the mere filing of such petition is enough to grant the employee authorization to begin working for the new employer while they wait for the petition to be approved. However, AC21 did not make clear whether employees can leave and re-enter the US during the pendency of the transfer petition. A policy for such admission was established by the "Pearson memo" of Jan 29, 2001 [59]. The relevant portion of this memo is quoted below:
An H-1B applicant for admission who is no longer working for the original petitioner is admissible at a Port of Entry (POE) pursuant to the portability provisions, upon presentation of the following evidence:
(a) that the applicant is otherwise admissible;
(b) that the applicant, unless exempt, is in possession of a valid, unexpired passport and visa (including a valid, unexpired visa endorsed with the name of the original petitioner);
(c) that the applicant was previously admitted as an H-1B or otherwise accorded H-1B status. If a visa exempt applicant is not in possession of the previously issued Form I-94, Arrival/Departure Record, or a copy of the previously issued I-94, the applicant may present a copy of the Form I-797, Notice of Action, with the original petition's validity dates; and
(d) that an H-1B petition was timely filed on behalf of the applicant, before expiration of the validity dates of the applicant's previously authorized period of stay. This evidence shall be in the form of a copy of a dated Form I-797 receipt notice reflecting that a new petition has been filed, or other credible evidence of timely filing that is validated through a CLAIMS query.The nonimmigrant applicant is admissible to the validity date of the previously approved petition, plus 10 days.
It appears that this policy was still in effect as of 2016 [60] although it was never explicitly codified in the federal regulations. So the answer to the question is "yes", provided that the conditions are met. If your H-1B visa stamp has expired, you won't be able to return until the new petition is approved, since a pending petition cannot be used for visa renewal [40]. (If you are visa-exempt, e.g., because you are travelling on a Canadian passport, then condition (b) does not apply to you.) If the original petition's validity period expires before your planned return to the US, you won't be able to enter the US until the new petition is approved, but if you are already in the US at the time when the original petition expires, then you are protected by portability (see below). You should bring the receipt notice for the new petition to the port of entry, ideally an original. (If you bring a copy, you may be sent to secondary screening so that the authenticity of the receipt number can be "validated through a CLAIMS query".)
According to INA 214(n), Employment authorization shall continue for such alien until the new petition is adjudicated.
Thus, if you were maintaining your H-1B status at the time of filing, and thus qualify for INA 214(n) portability, then the expiration of your previously authorized period of stay during the pendency of the portability petition does not terminate your employment authorization with the new employer. In other words, you can keep working for the new employer, within the period requested on the new I-129, until the new petition is either approved or denied.
An H-1B petition for an alien to begin new employment (including a different job with the same employer) without leaving the US is considered to be a type of extension petition [35]. Because of this, the general rules about I-94 expiration with a pending extension apply to this scenario; unlawful presence will only begin to accrue after the portability petition is denied.
The enactment of INA 214(n) gave H-1B changes of employment special status. It could be argued that Congress went beyond the mere tolling of unlawful presence previously enacted by INA 212(a)(9)(B)(iv); rather, they gave explicit permission for those aliens who qualify for H-1B portability to remain in the US even though their previous I-94 may expire while the extension is pending. Thus, such an alien should not be considered to be a removable alien on the basis of their I-94 expiration, as long as the petition remains pending. (As far as I'm aware, this legal theory has not been tested, as there are no known cases of DHS actually charging an H-1B portability beneficiary with overstaying.)
(The guidance in this section applies to the most common case where the requested start date for the new employment is before the I-94 expiration. If, on the other hand, the requested start date is after the I-94 expiration, it would be sensible to assume that portability doesn't apply (even if the petition was timely filed) and you are required to leave the US and wait for the new petition to be approved. But DHS has not been clear about this in written sources.)
What happens if my employer applies to extend my stay, but my I-94 expires while the petition is pending?
The general rules about I-94 expiration with a pending extension apply to this scenario. Provided that the extension was timely filed and the alien did not engage in any unauthorized employment, the alien will be protected from accrual of unlawful presence as long as the extension remains pending; if it is denied after the previous I-94 expired, then unlawful presence will only begin to accrue after the extension petition is denied.
In this scenario, for a 240 day period after the previous petition expires, the alien is authorized to continue employment with the same employer (such employment is not considered unauthorized
). Again, while the extension is pending, employment authorization continues only for up to 240 days after the expiration of the petition [44] (whereas, as discussed in the previous answer, there is no such 240 day limit if a petition is filed for new employment). USCIS makes an effort to adjudicate extension petitions within 240 days, and even suspended premium processing at one point in order to prioritize petitions that were approaching 240 days of pendency. However, in rare cases where the 240 day clock runs out, you can still stay in the US, but you can't work. This is because of the general rule about extensions mentioned in the previous paragraph.
If a denial occurs during the 240 day period, then employment authorization immediately ceases since the petition is no longer pending [44]. One should be aware that denials became more likely in 2017 following new USCIS guidance instructing adjudicators not to defer to prior approvals.
As discussed above, it's possible to recapture time spent outside the US, so extensions and periods of admission may be granted until the H-1B worker has actually spent 6 years in H-1B status. However, there are also two exceptions to the 6-year limit that apply when you have reached certain stages in the green card process:
- The "lengthy adjudication" exemption. To qualify, you or your employer must have begun the green card filing process---by filing a labor certification or I-140---at least 365 days ago.
- The "per-country limitation" exemption. To qualify, you must be the beneficiary of an approved I-140.
This exemption was created by AC21 §106 [45]. By statute, you qualify for this exemption if:
- You currently hold, or ever held H-1B status; and
- An employment-based immigrant visa petition or employment-based adjustment of status application has been filed on your behalf; and
- At least 365 days have elapsed since the filing of the visa petition or a labor certification, if required for the corresponding employment-based immigrant classification.
Those who qualify for the exemption may be granted H-1B status beyond the 6 year limitation, for 1 year at a time, "until such time as a final decision is made on the alien’s lawful permanent residence."
The wording of the statute left certain issues unclear. In 2017, DHS issued guidance [49] codifying (among other things) DHS's current interpretation of AC21. According to these rules [46] and the further clarification from the AFM [50][51], you qualify for this exemption if:
- You currently hold, or ever held H-1B status; and
- Any of the following are true:
- A labor certification required for EB-2 or EB-3 classification has been filed on your behalf and has been pending for at least 365 days; or
- A labor certification required for EB-2 or EB-3 classification was filed at least 365 days ago, was approved, and has neither expired nor been revoked; or
- An I-140 filed on your behalf is pending, and at least 365 days have elapsed since either the I-140 itself was filed or the approved labor certification required for the I-140 was filed; or
- An I-140 filed on your behalf has been approved and is still approved, and you are awaiting the availability of an immigrant visa number; or
- You have filed for adjustment of status or an immigrant visa based on your approved I-140, and your adjustment of status application or immigrant visa application is pending.
The regulations appear to be a bit broader than the statute; for example, if your labor certification has been pending for 365 days so your employer hasn't been able to file an I-140 on your behalf yet, you would still be eligible. (We won't speculate here on whether this is a permissible implementation of the statute.) The regulations also clarify the point at which eligibility for this exemption expires (i.e., the interpretation of the "until" clause of the statute), which is reflected in the criteria given above, and the fact that the H-1B petitioner need not be the same as the one that filed the qualifying labor certification or I-140.
Also relevant is the fact that an I-140 that has been approved for at least 180 days remains approved even if it is withdrawn by the petitioner or if the petitioner goes out of business [52]. This implies that such an I-140 can still be used for H-1B extensions provided that the other conditions described above are met. The announcement in the Federal Register clearly indicates that this was the intent [53]. For this reason, it's generally advised that you remain with your employer for at least 180 days after your I-140 is approved, unless you are sure that they won't withdraw it after you leave. (This would only apply to your first I-140; as long as that one stays approved, you can use it for H-1B extensions even if subsequent I-140s are revoked.)
Note that the exemption provided by AC21 §106 and the corresponding regulations is an exemption from the 6 year limitation itself, and not merely a rule permitting extensions beyond the 6th year. Thus, it can be claimed even if the H-1B petition is not an extension petition. Thus, provided you meet the criteria above, you could qualify for H-1B status beyond the 6th year regardless of whether the time after the 6th year is being sought as an extension of stay or whether, say, you're currently outside the US and need to be admitted to start working for a new H-1B sponsor after having already used up 6 years.
The 365-day waiting period required to claim the lengthy adjudication exemption is the reason why most companies will try to file the labor certification before the end of the fifth year of the employee's H-1B time. Assuming that the labor certification and I-140 are not denied, this ensures that the employee will become eligible for the exemption by the time their 6 years period expires, so no interruption to their employment will be necessary.
Am I eligible for the lengthy adjudication exemption if I failed to file an I-485 in time because I had to switch employers?
A noncitizen who has an approved I-140 with a current priority date, and who decides that they no longer want to be a permanent resident, cannot use AC21 to stay in H-1B status forever because they will lose eligibility for 1-year H-1B extensions after failing to file an I-485 for 12 consecutive months. However, what about the situation where the noncitizen wants to become a permanent resident, but their approved I-140 with a current priority date is not usable because the employer that filed it no longer has a job available for them? Such a noncitizen would be eligible to be sponsored for a green card by a different employer, which would have to file a new I-140 for that noncitizen, retaining the old priority date. However, this process can often take longer than a year. Would the noncitizen be able to get AC21 extensions?
According to [46], although there is a one-year deadline to file an I-485 if you have an approved I-140 with a current priority date and want to continue qualifying for AC21 H-1B extensions, there is a possible exemption to this deadline: USCIS may excuse a failure to file in its discretion if the alien establishes that the failure to apply was due to circumstances beyond his or her control.
If the noncitizen cannot file an I-485 because they have changed employers (and thus cannot use the old I-140), would this qualify as circumstances beyond their control?
The answer is that we don't know. USCIS has not provided guidance on this situation. A poster on Trackitt claimed [78] that according to their employer's law firm, an attempt to obtain an AC21 extension in this situation sometimes succeeds and sometimes does not (suggesting that USCIS, even internally, does not have a consistent policy). Noncitizens should bear in mind that if their priority date is current or will be current soon, switching jobs may adversely impact their ability to obtain future H-1B extensions due to failing to meet the one-year deadline, particularly if they will need to redo PERM with their new employer.
This exemption was created by AC21 §104(c) [47], according to which you qualify if:
- You currently hold, or ever held H-1B status; and
- An EB-1, EB-2, or EB-3 immigrant visa petition filed on your behalf has been approved; and
- Despite the approved petition, you are not able to be granted LPR status at the present time due to the per-country cap.
Eligibility for this exemption lasts "until the alien’s application for adjustment of status has been processed and a decision made thereon."
Many people who qualify for the per-country limitation exemption will also qualify for the lengthy adjudication exemption under current DHS rules (see the previous question). However, the per-country limitation exemption gives you 3 years at a time [48] whereas the lengthy adjudication exemption only gives you 1 year at a time.
The regulations [48] clarify that the H-1B petitioner need not be the same one that filed the I-140 used to qualify for the exemption.
The paragraph regarding the 180-day rule in the answer to the previous question about the lengthy adjudication exemption also applies to the per-country limitation exemption. Likewise, note that the exemption is not limited to extension petitions.
An EAD grants employment authorization that is not restricted to a particular employer (for example, it allows self-employment), but not all H-1B nonimmigrants will qualify for one. There are two common ways for an H-1B nonimmigrant to get an EAD:
- With a pending Form I-485 [24]. Usually this will be at the final stage of the employment-based green card process, but could also occur through, e.g., marriage to a US citizen. See the green card FAQ.
- With an approved Form I-140, but only if you can convince USCIS that you have "compelling circumstances" and your priority date is within 1 year of the cut-off date [25][26].
If you and your family have already progressed to the I-485 stage of the employment-based green card process process, then you and your dependent family members can apply for an EAD on the basis of the pending I-485 [24]. If you haven't reached this stage yet, there is an earlier stage of the green card process where your spouse can apply for an EAD, but this won't apply to yourself or to your dependent children. This is usually referred to as the H-4 EAD, but not all H-4 noncitizens are eligible for it:
The precise conditions to qualify for an H-4 EAD are [73][74]:
- The applicant must be in H-4 status;
- The applicant's H-4 status must be as the spouse (not child) of an H-1B principal. Spouses of H-1B1, H-2, and H-3 nonimmigrants do not qualify.
- The H-1B principal must be the beneficiary of an approved I-140 or the H-1B principal must have been granted H-1B status pursuant to an AC21 exemption. (There are two types of AC21 exemption: the
lengthy adjudication exemption
and theper-country limitation exemption
, which were discussed above.)
It is not enough for the H-1B principal to merely qualify for an AC21 exemption. The H-1B principal must have actually obtained H-1B status pursuant to an AC21 exemption in order to satisfy the criteria for their spouse to obtain an H-4 EAD. However, if the H-1B principal has an approved I-140, then they are not required to demonstrate that they have been granted an AC21 exemption.
The H-4 spouse cannot use their own I-140 in order to qualify for the H-4 EAD category. Likewise, an H-4 spouse who, at one point in time, was in H-1B status and benefitted from an AC21 exemption cannot use this fact to qualify for an H-4 EAD. An H-4 EAD applicant must demonstrate that their spouse, who is the H-1B principal at the time of application, is the beneficiary of an approved I-140 or has been granted H-1B status pursuant to an AC21 exemption.
Provided that the H-4 spouse indeed qualifies for an H-4 EAD, they can obtain one by filing form I-765 and indicating category (C)(26). [75]
If the H-1B principal has used up a certain amount of combined time in L-1 and H-1B status (call it X), ordinarily, an employer seeking to employ the H-1B nonimmigrant for an additional period of time (call it Y), such that the sum of X and Y is greater than 6 years, will submit evidence with the H-1B petition demonstrating a pending labor certification, pending I-140, approved I-140, or pending I-485 (see above for more information about the AC21 exemptions) in order to avoid the requirement for the H-1B nonimmigrant to spend 1 year physically outside the United States. When such a petition is approved by USCIS with the requested amount of time, the AC21 exemption has been granted, which means the H-1B nonimmigrant's spouse, if maintaining H-4 status, is eligible for an H-4 EAD.
For example, suppose that a noncitizen was first granted H-1B status on October 1, 2014 with an end date of September 30, 2017. This period of stay was later extended until September 30, 2020. On March 1, 2019, the employer filed a labor certification on behalf of the H-1B nonimmigrant. On April 1, 2020, the labor certification was still pending (and had been pending for more than a year), and the employer filed another H-1B extension petition, requesting an extension of stay until September 30, 2021. This extension was granted. At this point, USCIS had granted a total of 7 years in H-1B status (October 1, 2014 to September 30, 2021). This means USCIS accepted the evidence of AC21 exemption that was submitted with the most recent H-1B petition, and if the noncitizen's spouse is in H-4 status, said spouse is eligible for an H-4 EAD.
However, the USCIS guidance is unclear about the situation where the H-1B nonimmigrant would be eligible for a post 6th year extension but has not yet spent enough time in H-1B status to request one. For example, suppose that a noncitizen was first granted H-1B status on October 1, 2016 (with an end date of September 30, 2019), their employer filed a labor certification for them on March 1, 2018, and later filed an H-1B extension on April 1, 2019, which was approved on May 1, 2019 with an end date of September 30, 2022. If the labor certification was still pending as of May 1, 2019, then the H-1B nonimmigrant would have been eligible for a post 6th year extension if it were possible to request one—but it was not possible to request one because an employer can only request 3 years at a time. Such an H-1B nonimmigrant might wish to use their most recent H-1B extension, together with proof that the labor certification had been pending for longer than 1 year, in order to request an EAD for their H-4 spouse. Unfortunately, the USCIS guidance does not indicate whether this is a sufficient basis of eligibility.
Federal regulations provide [52] that an I-140 that was withdrawn more than 180 days after its approval is considered to still be approved. Therefore, an I-140 that is withdrawn more than 180 days after approval will qualify the beneficiary's spouse for an EAD (assuming that the spouse meets all other requirements for the H-4 EAD).
If an I-140 was withdrawn less than 180 days after its approval (or if the petitioner went out of business within 180 days of the I-140 approval and there is no successor-in-interest for the purposes of the I-140), it is revoked by USCIS and cannot be used by the beneficiary's spouse to qualify for an H-4 EAD. However, if the principal is the beneficiary of any other I-140s that are still approved, the principal's spouse may still qualify for an H-4 EAD based on one of the other I-140s. Also, if the principal has already been granted H-1B status beyond the 6th year pursuant to an AC21 exemption, the H-4 spouse may still qualify for the H-4 EAD.
For example, suppose that a noncitizen first obtained H-1B status on October 1, 2014 with an end date of September 30, 2017. This period of stay was later extended until September 30, 2020. On March 1, 2019, the employer filed a labor certification on behalf of the H-1B nonimmigrant, which was approved on June 3, 2019. The employer then filed an I-140 on June 17, 2019, which was approved on July 1, 2019, but the employee was born in India and did not yet have an immigrant vis available. On August 1, 2019, a different employer filed an H-1B transfer petition for this employee, and based on the approved I-140 from the original employer, this petition was approved on August 15, 2019 with an end date of July 31, 2022. On September 2, 2019, the employee left the old employer and began working for the new employer. On September 5, 2019, the old employer withdrew the I-140. Because it was withdrawn less than 180 days after approval, it was revoked by USCIS. The employee later got married in India and on December 1, 2019, returned to the United States with their new spouse, who was admitted on an H-4 visa. On December 16, 2019, the employee's spouse applied for an H-4 EAD. As of the date of filing, the employee's I-140 was no longer valid because it had been revoked in September; however, the employee's H-1B status was pursuant to an approved petition that granted status beyond the 6th year based on the I-140 that had been valid at the time. The fact that the employee was granted an AC21 exemption with their most recent H-1B petition is enough for their spouse to qualify for an H-4 EAD, even though the basis for that exemption had already been invalidated.
H-4 EADs holders may qualify for the 180-day automatic extension rule [76]. However, EADs are only eligible for automatic extensions if the basis for employment authorization does not require a separate adjudication [77]. This means that if an H-4 EAD holder's EAD will expire on the same date as their H-4 status, then they are not eligible for the 180-day automatic extension because a separate adjudication to extend their H-4 status would be required in order to establish a basis for continuing employment authorization. Therefore, the 180-day automatic extension only applies in a situation where:
- An H-4 nonimmigrant has been granted an H-4 EAD;
- The H-4 nonimmigrant has applied for a renewal of their H-4 EAD prior to the expiration date on the card;
- The H-4 nonimmigrant has an I-94 indicating H-4 status that will expire later than their EAD, and is still maintaining this status. (A copy of said I-94 should be filed along with the renewal EAD application.)
In such a situation, the EAD will be considered automatically extended past its expiration date until the expiration of H-4 status, but not to exceed 180 days after the original expiration date. The automatic extension will terminate when USCIS issues a decision on the renewal EAD application.
Because most H-4 EAD holders have an EAD that expires at the same time as their I-94, this 180-day extension rule is not very useful. However, there are some situations where an H-4 EAD holder can avail themselves of the 180-day extension. For example, suppose an H-4 nonimmigrant was granted H-4 status together with an H-4 EAD on April 1, 2019, both of which expire on January 31, 2022 (together with the principal's H-1B status). On August 2, 2021, the H-1B employer filed for an extension of stay until January 31, 2025. This petition was filed in premium processing and was approved on August 17, 2021. During the winter holidays, the H-4 spouse left the United States and obtained a new H-4 visa. On January 2, 2022, they returned to the United States and were admitted on the H-4 visa until January 31, 2025. On January 3, 2022, the H-4 spouse filed for a renewal of their H-4 EAD. In this situation, the original H-4 EAD would be considered to be automatically extended until July 30, 2022.
The work visa ban [63][66] expired at the end of March 31, 2021 and is no longer in effect. The information below is provided for historical context only. Due to the proclamation, H-1B visas were not be issued between June 24, 2020 and Dec 31, 2020, except to individuals who fell under one of the following exemptions:
- Persons who were physically present in the US on June 24, 2020 at 12:01 AM ET
- Persons who possessed an advance parole document or other travel document issued by the US, which was valid on June 24, 2020 at 12:01 AM ET
- Spouses and children of US citizens
- Persons whose job in the US was essential to the US food supply chain, in the opinion of the State Department or DHS
- Persons whose entry to the US would be in the national interest, for example, for national security or defense reasons, or because they are involved in health care related to COVID-19. This determination was be made by the State Department or DHS.
The ban also applied to H-4 visas for dependents of H-1B nonimmigrants. Because the State Department is responsible for administration of visa policy, their interpretation of the Proclamation determined which individuals were able to obtain H-1B and H-4 visas. The Proclamation was not clear about the rules for dependents and there was initially much speculation. On August 12, 2020, the State Department announced that, in all cases where the principal H-1B nonimmigrant is exempt from the proclamation, their dependents would also be exempt (and therefore able to obtain H-4 visas) [67].
The State Department did not always apply the first exemption (based on physical presence) correctly. See [68][70] for some examples of how their guidance changed over time. As of August 12, 2020, the State Department appeared to finally confirm that anyone who was present in the US on June 24, 2020 at 12:01 AM ET (regardless of status on that date) was completely exempt from the June 22, 2020 ban and could travel outside the US and apply for an H-1B visa [67]. Their dependents would be eligible for H-4 visas regardless of whether said dependents were inside or outside the US on June 24.
If an individual's H-1B visa was valid on June 24, 2020, they could still use that visa to travel to the US; they are exempted by section 3(ii) of the proclamation, as amended [63][66]. Their dependents could also obtain H-4 visas [67]. However, the State Department guidance was not clear about the fate of such individuals if their H-1B visas expire after June 24, 2020: in other words, the guidance was not clear on whether such individuals can renew their visas and whether their dependents can renew their H-4 visas [67]. However, see below for one important special case.
The national interest exemption, initially interpreted narrowly, was significantly broadened by the August 12, 2020 update, resulting in several categories of H-1B workers who were eligible for exemptions to the ban. See [67] for the full details. Of particular note ws the following exemption:
Travel by applicants seeking to resume ongoing employment in the United States in the same position with the same employer and visa classification
In other words, if an individual was already working some job in the US under H-1B status prior to June 24, 2020, but then they left the US temporarily and were outside the US on June 24, 2020, and they needed a new/renewed H-1B visa in order to return to the US to the same job with the same employer, they would be eligible for an exemption (which, again, would extend to their dependents).
Since the Proclamation only affected visa issuance, it did not affect the ability of Canadian citizens to enter the US in H-1B or H-4 status, since they did not require visas in order to apply for H-1B or H-4 status at the port of entry. Canadian citizens could still enter the US in H-1B status if they had a valid petition approved by USCIS, even if they did not fall under any of the exemptions listed above. [64][65]
Did the H-1B visa ban of June 22, 2020 affect H-1B extensions, change of employer, or Change of Status to and from H-1B?
No. A visa is distinct from status. A visa is also not the same thing as an H-1B petition. The proclamation [63], as written, applied to visas, and therefore did not affect the approval of H-1B petitions, or Extension of Stay or Change of Status based on an H-1B petition. Similarly, extensions of H-4 status and Change of Status to H-4 were unaffected.
[1] INA 101(a)(15)(L) (8 USC §1101(a)(15)(L))
[2] INA 214(g)(1)(A)(vii) (8 USC §1184(g)(1)(A)(vii))
[3] https://www.uscis.gov/archive/uscis-reaches-fy-2014-h-1b-cap-0
[4] https://www.uscis.gov/archive/uscis-reaches-fy-2015-h-1b-cap-0
[5] https://www.uscis.gov/archive/uscis-completes-h-1b-cap-random-selection-process-fy-2016
[6] https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2017
[7] https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2018
[8] https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2019
[9] 8 CFR §214.2(h)(2)(i)(I)
[10] 8 CFR §214.2(h)(8)(iii)(A)(5)(ii)
[11] INA 214(g)(5)(C) (8 USC §1184(g)(5)(C))
[12] INA 214(g)(5)(A–B) (8 USC §1184(g)(5)(A–B))
[13] INA 214(g)(7) (8 USC §1184(g)(7))
[14] 8 CFR §214.2(h)(13)(iii)(C)
[15] USCIS-AFM 31.3(g)(15), archived August 24, 2019
[16] https://www.uscis.gov/tools/reports-studies/reports-and-studies
[17] 73 FR 15391
[18] Ibid., p. 15392
[19] 8 CFR §214.2(h)(2)(i)(G)
[20] Adopted Decision 2018-02, Matter of S- Inc.
[21] 8 CFR §274a.12(b)(9)
[22] 8 CFR §214.2(h)(2)(i)(H)
[23] USCIS-AFM 31.3(g)(16), archived August 24, 2019
[24] 8 CFR §274a.12(c)(9)
[25] 8 CFR §204.5(p)
[26] Employment Authorization in Compelling Circumstances
[27] INA 214(n) (8 USC §1184(n))
[28] Ibid., (c)(1)
[29] 8 CFR §214.2(h)(2)(i)(A)
[30] Ibid., (h)(9)(i)
[31] 9 FAM 402.10-7(G)
[32] Instructions for Petition for Nonimmigrant Worker
[33] USCIS-AFM 30.3(d)(3), archived August 24, 2019
[34] Ibid., (d)(7)(A)
[35] 8 CFR §214.2(h)(2)(i)(D)
[36] Ibid., (h)(15)(ii)(B)
[37] Ibid., (h)(2)(i)(H)
[38] USCIS-AFM 30.2(d)(3), archived August 24, 2019
[39] 8 CFR §214.1(c)(4)
[40] 9 FAM 402.10-11(A)
[41] 8 CFR §214.2(h)(13)(iii)(A)
[42] USCIS-AFM 31.3(g)(11), archived August 24, 2019
[43] 8 CFR §214.2(h)(8)(ii)(A)
[44] 8 CFR §274a.12
[45] AC21 §106(a–b)
[46] 8 CFR §214.2(h)(13)(iii)(D)
[47] AC21 §104(c)
[48] 8 CFR §214.2(h)(13)(iii)(E)
[49] 81 FR 82398–82492
[50] USCIS-AFM 31.2(d)(4), archived August 24, 2019
[51] USCIS-AFM 31.3(g)(8), archived August 24, 2019
[52] 8 CFR §205.1(a)(3)(iii)(C–D)
[53] 81 FR pp. 82407, 82414–82415
[55] INA 214(g)(8)(B) (8 USC §1184(g)(8)(B))
[56] former 8 CFR §214.2(h)(8)(ii)(B) (January 1, 2019)
[57] https://www.federalregister.gov/documents/2019/01/31/2019-00302/registration-requirement-for-petitioners-seeking-to-file-h-1b-petitions-on-behalf-of-cap-subject
[58] 8 CFR §214.2(h)(8)(iii)(A)(5–6)
[59] https://www.uscis.gov/sites/default/files/files/pressrelease/ac21guide.pdf
[60] 81 FR pp. 82440–82441
[61] 8 CFR §214.1(l)(2)
[62] https://www.uscis.gov/news/news-releases/fy-2021-h-1b-cap-petitions-may-be-filed-april-1
[63] Proclamation Suspending Entry of Aliens Who Present a Risk to the U.S. Labor Market Following the Coronavirus Outbreak
[64] Seyfarth Shaw LLP - FAQ - New Proclamation Suspending Entry of H-1B, L-1, J-1, and H-2B Nonimmigrant
[65] https://twitter.com/gsiskind/status/1275888516459827200
[66] Proclamation on Amendment to Proclamation 10052
[67] Exceptions to Presidential Proclamations (10014 & 10052) Suspending the Entry of Immigrants and Nonimmigrants Presenting a Risk to the United States Labor Market During the Economic Recovery Following the 2019 Novel Coronavirus Outbreak
[68] https://twitter.com/travelgov/status/1275582206338117632
[69] https://twitter.com/TravelGov/status/1284201220605960198
[70] https://twitter.com/TravelGov/status/1284248313777266691
[71] https://twitter.com/TravelGov/status/1284219605741981698
[72] USCIS-AFM 30.2(d)(7)(A), archived August 24, 2020
[73] 8 CFR §274a.12(c)(26)
[74] 8 CFR §214.2(h)(9)(iv)
[75] Instructions for Application for Employment Authorization
[76] USCIS Policy Manual, Volume 10, Part B, Chapter 2
[77] 8 CFR §274a.13(d)
[78] https://www.trackitt.com/usa-discussion-forums/i485-eb/2335928895/not-eligible-for-h1b-renewal-current-priority-date-for-1-years/