What's the longest I can keep an H-1B worker at my business?

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Question:

I run a small Web-design company, and our top applicant for a new position is a foreign national student who will graduate soon. We are considering hiring him or her on an H-1B visa, but have never done this. One concern I have is how long we’ll have this person’s services, assuming he works out. I’d hate to go through all the training and then have his visa expire. What are the rules on H-1Bs?

Answer:

The H-1B visa allows employment for up to six years. It can be granted in maximum periods of three years.

This limit applies to the person, not the employer. For example – although it sounds like this isn’t an issue in your current situation -- the H-1B worker may work for one company for three years and then another company for three years.

The six years accrue only while the worker is actually in the United States. The H-1B worker may "recapture" any time spent abroad since first entering the U.S. with an H-1B visa or changing to H-1B status in the United States. For example, if the H-1B worker spends one month abroad each year for vacation, after five years he will be able to recapture those five months and add them to the six-year limit. To recapture time, the H-1B worker needs to have passport stamps, flight records, or other documents to evidence the time abroad.

After the worker spends one year abroad, he or she becomes eligible for another six years in the U.S. on an H-1B. So you theoretically could hire this person for six years, do without him for a year, and then rehire him, if you wanted to.

If you want to keep this person working in the U.S. longer term, you will need to pursue an employment-based green card process to sponsor the worker for lawful permanent resident status (i.e. a "green card"). If you reach certain milestones in the green card process, you can file additional H-1B petitions to keep the employee in the United States beyond the six-year limit. For more on the green-card application process, see Nolo’s articles on “Procedures to Sponsor a Worker for a Green Card.”

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