Maintaining H1b status

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Maintaining H1B status involves more than simply holding an I-94 that has not yet expired. H1B maintenance of status requires the beneficiary to engage in the work described in the approved H1B petition, at the locations shown, for the number of hours shown, and receive at least the salary shown on the petition. If the beneficiary fails to do this, then he or she is not maintaining nonimmigrant H1B status and is, in fact, in unlawful status.

If an H1B petition is about to expire, but the petitioner files a petition extension prior to the expiration date, then the law gives the beneficiary an automatic 240 day extension of H1B status. This extension is valid for 240 days or until the time granted when the USCIS adjudicates the petition, whichever is earlier. If an H1B beneficiary changes employers, he or she may begin working for the new H1B employer immediately upon the filing of that employer's H1B petition. If the H1B does switch employer prior to the approval of the petition, however, and the petition is denied, the H1B must either return to work for the original petitioner immediately or go out of lawful status.

If an H1B worker is benched without pay, the employee will go out of status. It is possible for an employee to take a bona fide unpaid leave of absence for medical or other personal reasons, but it must be very carefully documented. The USCIS will presume that the "leave of absence" was actually unpaid benching unless the petitioner can prove otherwise. If an employee genuinely needs to take time off, the employee needs to articulate the reasons, in careful detail, in writing. Ideally, the employee should include as much supporting evidence of the need as possible.

Applicants for adjustment of status who insist upon maintaining H1B status while waiting for an adjudication must be particularly careful. If an AOS applicant commits even a technical violation of his or her H1B status, their work authorization becomes void and their continued employment becomes unauthorized. If they accrue more than 180 days of such unauthorized employment, they are no longer eligible to adjust status. For this reason, it is a good idea to maintain a valid EAD card at all times to avoid any inadvertent problems with H1B status.