Maintaining Status

Getting admitted to and enjoying the benefits if working in the United States also entail some responsibilities on your part. You have the obligation to make sure all of your documents are current and accurately reflect the conditions of your stay in the United States. You may want to thoroughly examine the rules and regulations of the United States Department of Homeland Security (DHS) and gain an adequate understanding of what you are expected to do in order to guarantee yourself smooth legal status at all times without the risk of falling into the complications of an “out of status” category. As an H1 or O-1 worker, you have to perform ONLY the job that is described in your H1 or O-1 application or petition regardless of any opportunities that may be offered to you without the authorization of DHS. The following are some the things you need to do to maintain your H1b or O-1 status …


Valid Passport:

It is your responsibility that you are always in possession of a valid passport and other travel documents issued by the authorities of your country of citizenship. You have to get your passport and relevant documents renewed or replaced before they expire in time.


Change of Address:

You must notify the DHS if you have to move to another address that is different from the one filed in with your petition or already in the DHS’s record. This notification must be mailed to the appropriate DHS office within 10 days, not later, after moving. In order to notify the DHS, you have to fill out and mail Form AR-11, which you can also download from www.uscis.gov. We recommend that you send the AR-11 by certified mail and request a return receipt to ensure the DHS receives your form.  The form contains the address of the DHS office to which you need to mail the form. If you have had to do Special Registration (SR) at a United States Immigration and Citizenship Services (USCIS) district office or a Port of Entry, please make sure to follow SR instructions and file Form AR-11SR as required.


Decline Any Unauthorized Job Offer:

Your status entitles you ONLY to the performance of the job for which your employer filed a petition on your behalf. You must REFUSE to accept any additional offers of employment before obtaining DHS’s approval. For example, if company B offers you an additional part-time job while you are working for company A that sponsored you, your acceptance would be considered illegal and subjects you to adverse consequences. Similarly, if you leave the company that sponsored you for any reason, you cannot accept a new job without the authorization of DHS. However, you may have more than one employer at the same time as long as both have filed an H1 or O-1 petition for you. CAUTION: you are not permitted to accept any compensation, honorarium, or other kinds of payment from companies and organizations that have not filed an H1 or O-1 petition for you.


Respect the Last Date of Your Authorized Stay on Your I-94 Form:

Any overstaying in the United States beyond the dates you are authorized for the purpose of work, study, or visit are generally considered illegal. You are advised to NEVER stay beyond the date indicated on the I-94 form. Your status depends on continued employment. If you discontinue your employment or have completed the duration of the conditions of the employment, you must leave the United States and you should clearly understand that there is NO grace period for H1 or O-1 visas. There are, however, two EXCEPTIONS that permit you to stay in the United States.

1)   If you have applied for extension by filing a petition for extension ahead of time and the case is pending with the USCIS,
2)   If you have applied for change of status before the expiration date/termination of employment for which H1 or O-1 petition had been filed. CAUTION: these conditions only allow you to stay in the United States. You CANNOT work before your application for change of status gets approved


Apply for Extensions to Continue to Work and Stay in the United States:

H1 visas are issued for a total duration of 6 years. However, these visas are approved for a maximum of three years at a time. You have to apply for extensions at least six months in advance before the expiration of the three-year limit on the current petition. The petition for extension is the same as the original but you do NOT need to include documentation relating to other non-immigrant status(es) you may have held prior to H-1. All prior H-1approval notices (form I-797) should also be included. Your dependents with H-4 status must apply for extension by filling out Form I-539 with a fee and you to need to submit their application along with your extension petition. You are allowed to continue working (for the same employer) for up to 240 days while the petition for extension is pending. In order to so, you have to fill out a new I-9 form with your department manager so that you can continue to receive your paycheck. O-1 Visas are issued for a period of three years at a time but can be extended indefinitely with renewal application filed with USCIS every ONE YEAR. You must apply for extensions at least six months in advance of the expiration of your current status. Employers are encouraged to apply well ahead of time. O-1 petitions for extension do NOT require filing in all of the same documentations as the original, although you are advised to update your C.V. and publications list (if applicable), and submit copies of one or two new publications (if available). Dependents in O-3 status must have their status extended for which you have to fill out Form I-539 and submit it with the appropriate fee along with your own extension petition.


Remember to Make Sure Concurrent or Subsequent Employers File H-1 or O-1 Petition
H-1 status and O-1 status are employer-specific. They are not transferable when you decide to work for another employer concurrently (at the same time) or subsequently (when you find a new employer). Any employer, current or potential, should file an H1 or O-1 petition on your behalf as your official sponsor of record. You can begin working for your new employer while maintaining your previous H1 or O-1 visa IF the USCIS has sent your new employer a notice of receipt of the petition pending the approval of your case. This is called “portability.”


You need to get paid the Labor Condition application amount or higher. Progressive increase in salary does not compensate for an earlier defect so be vigilant when it comes to the amount you are getting paid and the attested LCA amount.