6.5 H-1B Specialty Occupations
U.S. businesses use the H-1B program to temporarily employ foreign workers in a specialty occupation that requires theoretical or technical expertise in a certain field, such as science, engineering, or computer programming. As a U.S. employer, you may submit a Form I-129, Petition for a Nonimmigrant Worker, to USCIS for nonimmigrants who have certain skills, provided they meet established requirements. You must also include an approved Form ETA 9035, Labor Condition Application, with Form I-129 and other documentation.
- A Newly Hired Employee with H-1B Classification. If USCIS approves your petition, you will receive Form I-797, Notice of Approval, which indicates that the foreign worker has been approved for H-1B classification. Once your employee begins working for you, you must both complete Form I-9.
- H-1B Extensions. USCIS can approve H-1B petitions for an initial period of up to three years and can grant extensions for up to an additional three years. Under certain circumstances, USCIS may extend an H-1B worker’s employment authorization beyond the six-year limit.
- H-1B Continuing Employment with the Same Employer. For an H-1B worker to continue working for you beyond the expiration of their current H-1B status (as indicated by the expiration date on their Form I-797), you must request an extension of stay before their H-1B petition expires. If you timely file a Form I-129 to extend their status, they are authorized to continue working for up to 240 days while USCIS processes the petition, or until USCIS makes a decision on your petition, whichever comes first. When your employee’s work authorization expires, you should write “240-Day Ext.” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. You must reverify the employee’s employment authorization in Section 3 once you receive USCIS’s decision, or by the end of the 240-day period, whichever comes first. See Section 6.7, Completing Form I-9 for Nonimmigrant Categories When Requesting Extensions of Stay.
- H-1B Employees Changing Employers (Porting). An H-1B employee who is changing H-1B employers may begin working for the new employer as soon as the employer files a Form I-129 petition on behalf of the employee, however, the employer must do this before the employee’s period of authorized stay expires. You must also complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94 issued for employment with the previous employer, along with their foreign passport, qualifies as a List A document. You should write “AC-21” and enter the date you submitted Form I-129 to USCIS in the Additional Information field in Section 2. See Section 6.7, Completing Form I-9 for Nonimmigrant Categories When Requesting Extensions of Stay.