Maintaining H-1B Status

Overview

Your H-1B immigration status is tied to your valid employment. If your employment ends, Dartmouth is obligated to withdraw the approved H-1B petition. Unless you are able to change to another nonimmigrant status or change to a new H-1B employer, you will need to depart the United States.

Requirements to Maintain Status

  • Maintain a valid passport.
     
  • Complete your stay by the date specified on your Form I-797 (H-1B Approval Notice) and the most recent Form I-94 record of arrival.  If you are seeking an extension of status, the host department should initiate the request with OVIS six months prior to the expiration of the current H-1B status.
     
  • Engage only in the Dartmouth employment described in the H-1B petition approved by USCIS, and adhere to the terms and conditions specified in that petition.
     
  • Work only at the location listed in the Labor Condition Application (LCA).
     
  • Work only during the period of validity listed on the approved H-1B petition and LCA.
     
  • Notify OVIS, Human Resources and USCIS of any change of address within 10 days by filing Form AR-11.

An H-1B employee who does not comply with these and all other USCIS regulations could be considered to be out of status, and may need to leave the United States.

Leave of Absence

It may be possible for Dartmouth College to maintain your H-1B petition as active if you are taking a permissible leave of absence. We can only do this if the leave of absence is for a defined period, is a benefit offered to all employees (such as a maternity leave), and is permissible under Dartmouth policy and state and federal law.

Contact Human Resources and your immigration advisor at OVIS if you are considering a leave of absence.

H-1B Status Extensions

The H-1B petition may be filed for an initial period of up to three years, with a possible extension of an additional three years. The maximum period of permissible stay in H-1B status in the U.S. is six years, with limited exceptions.

To extend the period of employment, Dartmouth must file an H-1B petition on behalf of the individual exactly as it did for the initial period of employment. If the petition is filed in a timely fashion (i.e., the initial period of employment did not expire before filing the extension request), the employee may continue to work while the extension is pending for a period of up to 240 days.

If the employee has spent a substantial portion of time outside the U.S. over the course of the H-1B employment, Dartmouth may be able to "recapture" this time by applying for an extension at the end of the six-year total. Eligibility for recapture will be reviewed on a case-by-case basis.

Departments should initiate a request for extension in iDartmouth at least 6 months before the current H-1B expiration. The department will be responsible for USCIS filing fees, courier fees, and any other miscellaneous expenses.

Employees with dependent spouses and/or children under the age of 21 will also need to submit a Form I-539 application for extension of H-4 status, and pay the USCIS filing fee. OVIS cannot assist with the preparation of the Form I-539, but will include the application as part of the H-1B extension petition filing.

Volunteer Work and Unpaid Training

The question of whether someone here in a nonimmigrant visa status can freely engage in volunteer work or an unpaid training opportunity is a complicated one, and needs to be considered on an individual basis. The facts of each situation will differ, and both immigration and employment law rules apply.

Federal and state laws prohibit employers from allowing individuals, including U.S. citizens, permanent residents and foreign nationals, regardless of immigration status, from volunteering in a position that is normally compensated.

Volunteering does not mean working without pay. Volunteering is donating time with an organization whose primary purpose is charitable or humanitarian in nature, without any kind of remuneration. The Department of Labor website contains resources on what constitute legitimate volunteer activities.

The Department of Labor applies a set of criteria when evaluating whether an activity constitutes a legitimate unpaid internship.

Engaging in activities that would be considered employment, without the appropriate work authorization, are a violation of your immigration status, and could threaten your ability to remain in the U.S., and to obtain future U.S. immigration benefits. If you have questions about a proposed activity, consult with your OVIS advisor before accepting an opportunity.