Guide to Sponsorship for H-1B Extension: When and How

For individuals in the United States on an H-1B visa, understanding the complexities of extending the visa is crucial. This article aims to clarify the process of H-1B extension, distinguishing between sponsorships by the original employer versus a potential H-1B transfer.

Understanding the H-1B Visa

The H-1B visa is a commonly used non-immigrant visa that allows U.S. employers to hire foreign workers in specialized occupations. Each year, the U.S. Department of State allocates a fixed number of H-1B visas, with a cap of 65,000 for the general category and an additional 20,000 for individuals with a Master’s degree or higher from a U.S. institution.

Who is Supposed to Sponsor an H-1B Extension?

The sponsor for an H-1B extension is typically the original employer who initially sponsored the H-1B visa. If the original employer still needs the services of the employee, they have the responsibility to continue sponsoring the extension of the H-1B visa.

However, in situations where the employee seeks to extend their stay with a different employer, this is not considered an extension but rather an H-1B transfer. In such cases, the new employer would be the one to sponsor the extension of the H-1B visa.

Key Differences Between an Extension and a Transfer

Extension:

The original employer continues to sponsor the H-1B employee remains employed by the same same work and employment conditions are maintained.

Transfer:

A new employer sponsors the extension of the H-1B employee changes work and employment conditions may apply.

Criteria and Requirements for H-1B Extension

To extend the H-1B visa, the following criteria and requirements must be met:

The employee must have been in lawful H-1B status and maintained all work extension must be done within the cap gap period, which is a temporary extension of stay for eligible H-1B nonimmigrants whose status is pending on a previously approved H-1B employer must file the appropriate form, typically Form I-129, with evidence of the employee’s current employment, proposed extension, and eligibility for the H-1B visa.A new petition is required for each year of extension, with the government occasionally charging an additional fee for multiple extensions.

Processing and Timeline

The processing time for an H-1B extension can vary depending on whether the extension is filed concurrently with the original H-1B application or after it has expired. Here is a general timeline:

Direct Extension: If the extension is filed along with the initial H-1B application, processing may occur within 3-6 months, depending on workload.Late Extension: If the extension is filed after the H-1B has expired, it is considered a change of status and may take longer, typically 6-12 months, due to backlogs and additional requirements such as a new petition and labor certification.

Conclusion

The distinction between an H-1B extension and a transfer is critical for both employees and employers. Maintaining a clear understanding of these differences ensures smoother transitions and avoids potential issues with visa status. It is highly recommended to consult with a legal professional to navigate the complexities of H-1B visa extensions and transfers effectively.