The H-1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations.

1. H-1B Visa Duration of Stay:

The duration of stay is three years, extendable to six years. An exception to maximum length of stay applies in certain circumstances:

  • If a visa holder has submitted an I-140 immigrant petition or a labor certification prior to their fifth year anniversary of having the H-1B visa, they are entitled to renew the visa in one-year increments until a decision has been rendered on their application for permanent residence.
  • If the visa holder has an approved I-140 immigrant petition, but is unable to initiate the final step of the green card process due to their priority date not being current, they may be entitled to a three-year extension of their H-1B visa until their adjustment of status can finish.

2. H-1B Visa Lottery:

Each year, generally on April 1, the H-1B season commences for the following federal fiscal year. The first weekday in April is the earliest that an applicant may legally apply for the next year’s allotment of cap-subject H-1B. Those who have the U.S. master’s exemption have two chances to be selected in the lottery: first, a lottery is held to award the 20,000 visas available to master’s degree holders, and those not selected are then entered in the regular lottery for the other 65,000 visas. Those without a U.S. master’s degree are entered only in the second, regular, lottery. See 2018 FY H-1B Cap Season.

3. H-1B Visa and Path to Green Card:

Even though the H-1B is a non-immigrant visa, it is one of the few temporary visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent while still a holder of the H-1B visa. In the past, the PERM-based EB2/EB3 green card process used to take only a few years, less than the duration of the H-1B visa itself. However, recently the legal employment-based immigration process has become backlogged and retrogressed to the extent that it now takes many years for guest-work visa holders from certain countries to obtain green cards. Since the duration of the H-1B visa hasn’t changed, this has meant that many more H-1B visa holders must renew their visas in one or three-year increments for continued legal status while their green card application is in process.

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