7.5 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) A Newly Hired Employee With H-1B Classification
If USCIS approves your petition, you will receive Form I-797, Notice of Approval, from USCIS, 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.
(b) H-1B Extensions
H-1B petitions can be approved for an initial period of up to three years, after which USCIS may grant extensions for up to an additional three years. Certain H-1B workers may be extended beyond the six-year ceiling.
For more information about H-1B extensions, please visit uscis.gov.
(c) 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 Notice of Action approval notice, you must request an extension of stay before their H-1B petition expires. Upon submitting a timely filed Form I-129 petition seeking an extension of the employee’s status, the employee is authorized to continue to work while the petition is being processed for a period not to exceed 240 days, or until USCIS denies 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. Also your employee may update Section 1 by crossing out the expiration date of their employment authorization noted in the attestation. The employee may write in the new date that the automatic extension of employment authorization ends and initial and date this update in the margin of Section 1. You must reverify the employee’s employment authorization in Section 3 once you receive a decision on the H-1B petition or by the end of the 240-day period, whichever comes first.
(d) 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. The new petition must not be frivolous and must have been filed prior to the expiration of the individual’s period of authorized stay. The new employer must complete a new Form I-9 for this newly hired employee. An H-1B employee’s unexpired Form I-94/Form I-94A issued for employment with the previous employer, along with their foreign passport, would qualify as a List A document. The new employer should write “AC-21” and enter the date Form I-129 was submitted to USCIS in the Additional Information field in Section 2.
For more information about employing H-1B workers, please visit uscis.gov.
Please go to uscis.gov/files/form/i-129instr.pdf (PDF)for further instructions on filing extensions of stay.