H-1B Visa Holder: Wages, Job Changes, and H-4 Family

If you hold an H-1B visa, you have a defined set of rights and rules that govern your pay, your ability to change jobs, how long you can stay, and what happens if you lose your job. Your employer must pay you the wage on your approved petition whether or not work is available, you can move to a new sponsoring employer as soon as they file a valid petition, you get 60 days to regroup after a termination, and pursuing a green card will not put your status at risk. The details below walk through the rules an H-1B visa holder relies on most.

The Wage You’re Owed

Before your petition was filed, your employer submitted a Labor Condition Application to the Department of Labor promising to pay you the higher of two amounts: the actual wage paid to other workers in the same role with similar qualifications, or the prevailing wage for that occupation in your work location.¹ That number is what appears on your approved petition, and it’s what you’re owed.

Prevailing wages are tiered by experience. Level 1 is entry-level and Level 4 is fully experienced. An employer can’t classify an experienced hire at Level 1 to lower the required salary, and both DOL and USCIS look at whether the assigned level matches your actual duties.

You should also know what your employer pays for and what you can be asked to pay. DOL rules prohibit the employer from passing the costs of preparing your H-1B petition or the LCA to you; any such payment is treated as an unauthorized deduction from your wages. The one government fee you’re allowed to cover is premium processing, if you want it for personal reasons.

The Benching Prohibition

One of the strongest protections you have is the prohibition on “benching.” If your employer has no project for you, no client placement, or no work to assign, you still get paid your full petition salary.¹ The only exception is when you voluntarily stop working for personal reasons unrelated to employment, such as extended personal travel or a medical situation not covered by the employer’s benefit plan.

This rule catches staffing and IT consulting firms most often. If a consulting firm brings you on but can’t place you at a client site, the firm still owes your full wage. There is no “waiting for a project” exception.

If You Lose Your Job

Losing an H-1B job doesn’t mean you have to leave the country the next day. Federal regulations give you a grace period of up to 60 consecutive days, or until your I-94 expires, whichever is shorter. During that window you remain in valid status and can look for a new sponsoring employer, file a change of status to another visa category, or prepare to depart.²

Sixty days is short. If you sense a layoff coming, start networking and interviewing before it’s announced. Once the clock starts, it doesn’t stop for holidays or slow hiring cycles.

Changing Employers

H-1B portability lets you start working for a new employer as soon as they file a valid petition on your behalf. You don’t wait for approval, and you don’t need your current employer’s permission. The new employer must submit the petition, with an approved Labor Condition Application, before your current authorized stay expires.³ Your current employer cannot legally retaliate by withdrawing your existing petition before the new one is filed.

There is a real risk if you quit before the new petition is filed. Without a pending or approved petition, you’re out of status, and portability no longer applies. The safest move is to wait until the new employer has actually filed, and you have a receipt number in hand, before giving notice.

The 240-Day Rule for Extensions

If your current employer files a timely extension petition before your H-1B expires, you can keep working for that same employer for up to 240 days while USCIS processes it, or until USCIS makes a decision, whichever comes first.⁴ “Timely” is the operative word. If the filing goes in after your status expires, this protection is gone.

How Long You Can Stay

Your initial H-1B admission runs up to three years, with an extension for another three, bringing you to a standard maximum of six.⁵ After six years you generally must leave the U.S. and stay abroad for at least one year before seeking H-1B status again. Time you previously spent in H or L status counts against the six-year clock, so a prior L-1 stint reduces the H-1B time available to you.⁶

Extensions Beyond Six Years Under AC21

If you’re in the green card pipeline, two provisions of the American Competitiveness in the Twenty-first Century Act can carry you past the six-year limit.

One-year increments under AC21 Section 106: If a labor certification application or an I-140 immigrant worker petition has been pending for at least 365 days, your employer can extend your H-1B in one-year increments until your permanent residency case is decided.⁷
Three-year increments under AC21 Section 104: If you have an approved I-140 but can’t get your green card because of per-country visa backlogs, you can extend in three-year increments until your priority date becomes current and adjustment of status is decided.⁵

These provisions matter most for workers from countries like India and China, where employment-based green card backlogs can run well over a decade. Without AC21, many workers would run out of H-1B time long before their priority dates came current.

Dual Intent and the Green Card

The H-1B carries what immigration lawyers call “dual intent.” You are not required to prove you have a foreign residence you intend to return to, and filing for a green card will not jeopardize your H-1B status. The regulations state directly that an approved labor certification or the filing of an immigrant petition cannot be used as a basis to deny an H-1B petition, extension, or admission.⁶

Holders of most other temporary visas, such as B-1/B-2 or F-1, can be denied entry or extensions if an officer thinks they intend to stay permanently. You face no such risk, which is a large part of why the H-1B is the most common stepping stone to employer-sponsored permanent residency.

Traveling Outside the U.S.

Traveling abroad while on H-1B status takes some planning. To re-enter, you need a valid H-1B visa stamp in your passport, unless you’re a Canadian citizen, who does not need a U.S. visa stamp. If your stamp has expired, you’ll need to schedule a consulate appointment abroad and apply for a new one before returning. Processing times and document requirements vary by country, so check the specific embassy’s site well before you travel.

Automatic Visa Revalidation for Short Trips

There is a useful exception for short trips to Canada and Mexico. Under automatic revalidation, you can re-enter with an expired visa stamp as long as you have a valid I-94, your trip lasted 30 days or less, and you did not apply for a new visa while abroad.⁸

Automatic revalidation is not available to nationals of countries designated as state sponsors of terrorism (currently including Iran, Syria, and Sudan), or to anyone whose visa was previously cancelled. If either applies to you, you need a valid stamp regardless of trip length.⁸

Your Spouse and Children on H-4

Your spouse and unmarried children under 21 can join you in the United States on H-4 dependent visas. H-4 status lets them live here and attend school, but it does not automatically authorize employment. Their status is tied to yours: when your H-1B expires or is revoked, their H-4 status ends with it.⁹

Work Authorization for H-4 Spouses

Certain H-4 spouses can apply for an Employment Authorization Document that lets them work for any employer without restriction. To qualify, you (the H-1B holder) must either have an approved I-140 immigrant worker petition or be in H-1B status beyond six years under the AC21 provisions above.⁹ The H-4 EAD rule has faced legal challenges and policy uncertainty over the years, so confirm current status through USCIS before relying on it.

When a Child Turns 21

H-4 status ends when a dependent child reaches 21, because they no longer meet the definition of a “child” for H-4 purposes. At that point the child must change to another immigration status, such as an F-1 student visa, or leave the country. The Child Status Protection Act can sometimes preserve green card eligibility by recalculating the child’s age, but it does not extend H-4 status itself. If your family is approaching this deadline, talk to an immigration attorney well in advance.

What Employer Violations Look Like

The wage and workplace rules above have real enforcement behind them. A standard violation of wage, notification, or related LCA conditions can bring fines up to $2,364 per violation. Willful violations of wage or working-condition requirements carry penalties up to $9,624 per violation. The most severe category, willful violations combined with displacement of a U.S. worker within 90 days before or after the H-1B filing, can reach $67,367 per violation.¹⁰ DOL can also bar an employer from filing new visa petitions for one to three years depending on severity.¹¹

Your employer must also keep a public access file for each LCA, containing the certified application, wage documentation, proof that the LCA filing was posted or noticed to employees, and a description of benefits. That file has to be maintained for at least one year after your last day of employment under the LCA. You have the right to inspect it, and it’s often the first document a wage complaint relies on.

1
eCFR. 20 CFR 655.731 – What Is the First LCA Requirement, Regarding Wages
2
U.S. Citizenship and Immigration Services. Options for Nonimmigrant Workers Following Termination of Employment
3
U.S. Department of Labor. Fact Sheet 62W – What Is Portability and to Whom Does It Apply
4
U.S. Citizenship and Immigration Services. Extensions of Stay for Other Nonimmigrant Categories
5
U.S. Citizenship and Immigration Services. FAQs for Individuals in H-1B Nonimmigrant Status
6
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
7
GovInfo. Public Law 106-313 – American Competitiveness in the Twenty-first Century Act of 2000
8
U.S. Department of State. Automatic Revalidation
9
U.S. Citizenship and Immigration Services. Employment Authorization for Certain H-4 Dependent Spouses
10
eCFR. 20 CFR Part 655 Subpart I – Enforcement of H-1B Labor Condition Applications
11
Office of the Law Revision Counsel. 8 USC 1182 – Inadmissible Aliens