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.
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.
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.
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.
H-1B employment is position and employer-specific. The immigration regulations require that Dartmouth notify both USCIS and the Department of Labor when H-1B employment ends if the end date is prior to the end date of the approved H-1B petition. If the H-1B employment is terminated and is not voluntary, then Dartmouth is also obligated to offer to pay the H-1B employee the reasonable cost of the return transportation home. This obligation does not extend to dependent family members.
If you plan to change H-1B employers before the expiration of your H-1B employment with Dartmouth, please let your OVIS advisor know. Because H-1B employment is position and employer-specific, the new H-1B employer will need to file a new H-1B petition on your behalf. Note that if you are seeking to move to an employer who is subject to the H-1B cap, there may be limitations on the new employer’s ability to file the H-1B petition on your behalf because the petition will be cap-subject.
The H-1B regulations allow for a discretionary grace period of up to 60 days following the end of H-1B employment, but it is important to understand that the grace period only applies if the employment ends prior to the end of the H-1B approved petition, and the decision to grant all or a portion of the grace period lies with USCIS at the time the agency is adjudicating the new request for an immigration benefit, filed by or on behalf of the employee.
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, is 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.