H-1B nonimmigrant status may be granted to a foreign national who is temporarily in the U.S. in a specialty occupation. A specialty occupation is defined as one “which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation… and requires the attainment of a bachelor’s degree or higher… as a minimum for entry into the occupation in the U.S.”
H-1B status is applied for by the employer (petitioner) on behalf of a foreign national (beneficiary) whose services the employer (petitioner) wishes to secure. The petitioner’s notice of approval comes on a Form I-797, also known as the “Notice of Action.” This Form I-797, along with the beneficiary’s I-94 card, constitutes all the documentation needed to prove valid H-1B nonimmigrant status.
The United States Citizenship and Immigration Services (USCIS) is the agency of the U.S. Department of Justice that administers and enforces the Immigration and Nationality Act. The Act provides the basis for controlling the flow of aliens into the U.S. for permanent or temporary residency. It is administered outside the U.S. by the U.S. Department of State through its consular posts around the world.
Very Important Documents
The three most important documents to have valid and in your possession while in H-1B status are:
- I-94 card;
- Passport; and
- Photocopy of I-797A form.
Difference between Visa Stamp and I-94 Card
A visa stamp in your passport gives you permission to apply for entry into the U.S., and the I-94 card (arrival/departure record) enables you to remain in the U.S. after having entered. Your visa need not remain valid once you have used it to gain admission into the U.S.
Initially, H-1B status can be granted for a period of up to three years. An extension of stay can be authorized for up to three more years, for a total maximum stay of six years in H-1B status. Regulations now allow for extension of H-1B status past the six year limit if an I-485, I-140, or a certified labor certification has been filed on your behalf and has been pending for more than 365 days.
Increased Portability of H-1B Status
A nonimmigrant alien in H-1B status is authorized to accept new employment upon the filing by the prospective employer of a new H-1B petition on his or her behalf. The petition need not be approved prior to beginning employment. USCIS needs only to have received the petition. Employment authorization shall continue for such alien until the new petition is adjudicated. If the petition is denied, such employment authorization will cease.
Description of Stay
As an H-1B beneficiary at the Rockefeller, you must carry out the research mentioned in the University’s application and earn a salary or other compensation only from Rockefeller. If you are to receive a salary or other compensation from another employer, that employer first must file and have approved a petition application to have you as their employee. The total time in H-1B status remains six years (except as explained above), regardless of the number of petitioners for whom you are employed.
Travel Abroad and Reentry into United States
You must always be sure to have an unexpired H-1B visa stamp in your passport in order to be readmitted into the U.S. in H-1B nonimmigrant status. This stamp is applied for by presenting a copy of form I-797A, your Personal Records statement, and a valid passport at a U.S. consulate or embassy (preferably in your country of permanent residence).1
Some exceptions regarding back and forth travel to the U.S. apply to individuals who are subject to Section 212 (d) (3) of the Immigration Nationality Act. This requires that you obtain a waiver of inadmissibility before being readmitted in the U.S. If you are subject to this Section, such a notation (212 (d) (3)) should be marked in your passport.
It is your responsibility to determine whether or not you need a visa stamp(s) to travel to countries other than the U.S.
As an H-1B nonimmigrant, you are responsible for obtaining a certificate of compliance, also known as a sailing or departure permit from the Internal Revenue Service (I.R.S) before leaving the U.S. This permit acts as evidence that you have paid whatever taxes may be due the U.S. government. Please refer to I.R.S. publication 519, “U.S. Tax Guide for Aliens” for information as to how to obtain this permit.
Also, Mary Xikis, Payroll Supervisor, can issue you a letter for the purposes of obtaining this permit (or acting as one, should the task of obtaining one prove impossible) which states your name, title, date of departure, date of return (if applicable), salary period, salary, and federal, state, and city income tax withheld.
Dependents of H-1B Holders (H-4’s)
Dependents (spouse and unmarried minor children) of H-1B aliens are in H-4 status and their stay is dependent on the status of the H-1B.
An H-4 applicant should present him/her self at a U.S. consulate or embassy with you as the H-1B holder and ask to be issued an H-4 visa stamp. If dependents will be traveling separately and they have not been issued H-4 visa stamps, they have to submit a copy of your I-797A approval notice and Personal Records statement, as well as a copy of the marriage certificate and/or birth certificate to the U.S. consular official.
If dependents travel with you, they can enter the U.S. on your I-797 form. They must have valid H-4 visa stamps.
H-4s may not apply for or accept employment under any circumstances.
Permanent Residency (“Green Card”) Status
Many H-1B nonimmigrants apply for permanent residency during their years in H-1B status. Please be aware that the entire application process can take two years or more to complete; therefore, I strongly advise that you contact our office within the last two years of your stay in H-1B status to discuss the logistics of applying for permanent residency.
Please feel free to our office should you have any questions with respect to your stay as a nonimmigrant while at the University. Also, if at any time you feel uncomfortable with the documentation given to you at the border or mailed to you from the USCIS, please contact our office as soon as possible.
Immigration & Academic Appointments Specialist
Director, Immigration & Academic Appointments Specialist
1 If you are traveling solely to Canada or Mexico, and your trip is less than 30 days, and you have a valid I-94 card, copy of I-797A Form and passport, you do not need to have a valid H-1B visa stamp to be readmitted to the U.S. Please call me if you intend to follow this rule, so I can determine whether or not you should have a letter from this office.