The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker must either apply for and be granted a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or leave the United States.
The regulations define a "specialty occupation" as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including but not limited to architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum(with the exception of fashion models, who must be "of distinguished merit and ability").Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field. H-1B work-authorization is strictly limited to employment by the sponsoring employer.
Duration of stay
The duration of stay is three years, extendable to six. An exception to maximum length of stay applies in certain circumstances:
one-year extensions if a labor certification application has been filed and is pending for at least 365 days; and
three-year extensions if an I-140 Immigrant Petition has been approved.
Despite a limit on length of stay, no requirement exists that the individual remain for any period in the job the visa was originally issued for. This is known as H-1B portability or transfer, provided the new employer sponsors another H-1B visa, which may or may not be subjected to the quota. Under current law, H-1B visa has no stipulated grace period in the event the employer-employee relationship ceases to exist.
U.S. policy on maximum duration
The maximum duration of the H-1B visa is six years (ten years for exceptional Defense Department project-related work). H-1B holders who want to continue to work in the U.S. after six years, but who have not obtained permanent residency status, must remain outside of the U.S. for one year before reapplying for another H-1B visa.
There are generally two exceptions to the six-year duration of the H-1B visa:
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 their H-1B visa in one-year or three-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. This exception originated with the American Competitiveness in the Twenty-First Century Act of 2000.
H-1B and legal immigration
Even though the H-1B visa is a non-immigrant visa, it is one of the few visa categories recognized as dual intent, meaning an H-1B holder can have legal immigration intent (apply for and obtain the green card) while still a holder of the visa. In the past the employment-based green card process used to take only a few years, less than the duration of the H-1B visa itself.
However, in recent times the legal employment-based immigration process has backlogged and retrogressed to the extent that it now takes many years for skilled professional applicants from certain countries to obtain their green cards. Since the duration of the H-1B visa hasn't changed, this has meant a lot more H-1B visa holders have to renew their visas in one-year or three-year increments to continue to be in legal status while their green card application is in process.