Everything About Applying H1B Visa Extension

Immigration Guides | Richard Herman

The H-1B is a temporary working visa that is increasingly popular for providing many advantages to its holders. Considering the long process of finding an employer, being selected in the lottery, and then being approved, the H-1B visa is valuable.

This is why many highly skilled workers would want to look into an H-1B extension request as they find new position, work toward the green card, or wish to continue working and living in the United States.

If you are a foreign employee in the on H-1B status, you might be in the situation when you have to file for a three year extension of your permitted stay.

You are at the right place – here, you can learn more about the visa extension process

What Is H-1B Status

An H-1B visa is a nonimmigrant visa that temporarily allows a foreign national to work in the U.S.

When foreign workers obtain an H-1B visa, they may hold the H-1B visa status for six years.

This H1B status is renewable every three years after the United States Citizenship and Immigration Services (USCIS) approved it. Unlike some other visa processes, the H-1B visa process is initiated by the employer, not the beneficiary.

Learn how to get assistance with your petition on the Department of Homeland security official website.

H1B Visa Extension

Under American Competitiveness in the 21st Century Act of 2000 AC21 and the 21st Century Department of Justice Appropriations Act of 2001 DOJ Act, an H-1B employer can file one-year increments of H1B extensions after the completion of six years on H-1B status.

In other words, the H-1B status allows the maximum period of staying for three years. After the granted period, you can apply for additional three years, making it six year maximum, but in increments of no more than three years at any one time.

For certain H-1B1 applicants, from Chile and Singapore, the visa is only available in one year increments and can be renewed each year.

Note that after the six-year limitation period on H1B status is over, the foreign national must be physically present outside the U.S. for one year before a new H-1B petition can be granted.

In some limited circumstances, you might even be able to get permission for an extension of stay beyond the maximum of six years. That usually requires an employer who will sponsor you for a green card.

You should be aware of some pitfalls, as well: having already spent some time in the United States on another H visa or L visa count against your six-year maximum!

But, in this cases you you have the option to leave the country for a year and then reapply for one of these visas, or apply for an extension of H1B status along with a request to recapture time spent.

If you decide to apply for an H-1B extension, you should know that you will go much through the same process as you initially applied for the H-1B visa.

Should I Wait Until Current H-1B Status Expires to Seek Visa Extension?

No, your employer needs to file for your visa renewal before your currently permitted stay expires. Once your H1B status expires, you will be eligible for an extension only if you can prove that:

The delay occurred because of extraordinary circumstances that were beyond your control
The length of the delay was reasonable
You haven’t otherwise violated the terms of your H-1B status
You are a bona fide nonimmigrant,
You have not been placed into removal proceedings.

Final Rule

In January 2017, the Federal Register implemented a final rule. This rule heavily affected many working visas, including the H-1B.

It significantly impacted visa holders attempting to apply for an H-1B extension while working toward lawful permanent resident status (obtaining the green card).

Before the final rule, the I-140 needed to be submitted a year (365 days) before the end of the 6-year maximum stay. But now, the Federal Register imposes that the petition must be filed at least 365 days before the beginning of your exemption, and the start date requested on the visa extension must be after the Labor or I-140 petition has been pending for over 365 days.

Can H-1B Visa Status be extended beyond 6 years?

Some H-1B holders who have had a Labor Certification Application LCA pending for more than one year may be able to extend their H-1B visa beyond the 6-year limit.

It may takes several months to prepare and file a labor certification application, so make sure you don’t wait until the last minute.

This can continue until a final decision is reached on the pending employment-based permanent residence case.

Requirements for H-1B Visa Extension Beyond six years

Certain workers may be eligible for extensions beyond the sixth year.

This 7th-year extension is limited to H-1B visa holders who:

Apply for the employment based green card
Have filed an employment-based preference petition but cannot adjust status to permanent resident due to a backlog in priority dates

How to Apply for an Extension of H-1B Visa?

To extend your H-1B visa, your employer must file a Form I-129 on your behalf. With this petition, you need to prepare the H Supplement and some supporting documents. These are the following documents:

A letter describing in-depth your position within the company
Copies of university diploma(s) and transcript(s)
Copy of your passport and I-94 Departure Record
Labor condition application approval pending, labor certification (approved LCA), or immigrant petition/approved petition and unavailability of immigrant visa number
Paychecks and W-2s proving you’ve been working and getting paid
Form I-797 that USCIS initially issued to approve you for H-1B status.

Also, your employer needs to submit a new Labor Condition Application (LCA) if you seek to file an extension petition for more than three years of initial USCIS approval of your H-1B petition.

But first, the employer must receive a certification of the LCA from the Department of Labor (DOL) and submit the labor certification with USCIS.

H-4 Visa Extension

When the employment-based immigrant petition (I-140) is filed with the USCIS, and you receive visa approval, you need to wait for your priority date to be current, or when immigrant visa number is available. Once your immigrant visa number is available, your H-4 spouse dependent family members can apply for employment authorization. When they get an EAD (Employment Authorization Document), they will be allowed to work for any U.S. employer without restriction (except jobs requiring security clearance).

Your H-4 visa holders can follow you and extend their work authorization as long as you have an approved I-140.

If you want to change the job or your current employer wants to withdraw your I-140, the EADs of H-4 visa holders would still be valid until their expiration date. But, note that they wouldn’t be able to renew it unless you had another I-140 approved by that time.

If your spouse and children also need extensions, then you’ll need to file a Form I-539 on their behalf.

The current administration aims to eliminate this H-4 EAD rule. If this happens, H-4 holders will need to seek alternative means of employment.

H-1B Extension Filing Fee and Costs

To receive an H-1B extension, your employer must pay the same fees as the first H-1B visa application was made.

Also, you can choose processing which is payable either by the client or their employer. But, if you decide to pay the relevant fees, your employer must prove that you have chosen to pay the Premium Processing Fee for your benefit instead of the employers’ benefit.

Please, note that this article is only for general information purposes. If you have any questions about H-1B extension fees or any other questions or problems regarding this, contact your immigration attorney, and we will gladly solve any of your problems.

Reasons for Extension Denials

There are three common reasons when a USCIS officer might make an extension denial decision for your case:

Specialty Position – USCIS may not deem your position a specialty if you have changed jobs with your sponsoring employer. To avoid this situation, the foreign worker should stay within the same position or line of work that they used to get the H-1B. Also, you can contact us, and after assessing your situation, we will advise you on the best steps to take.
Employer-Employee Relationship – One of the USCIS’s requirements is that the employer completely controls the H-1B holder’s employment, such as hiring and firing the employee and controlling their salary, working location, and day-to-day activities.
Visa Status – To maintain your nonimmigrant status, you mustn’t commit any crimes in the U.S. Not only are these grounds for deportation but certainly, those are also grounds for an H-1B extension denial. Also, working without authorization or avoiding taxes can easily be reasons for the USCIS officer to deny your extension.

From H-1B to Permanent Resident Status

You are eligible for the green card or become a permanent resident if:

You have worked for six years in the U.S. on an H-1B visa
You are reliant on continued eligible employment with the current or new authorized employer (obtained Labour Condition Application (LCA), filed to and granted by the U.S. Department of Labour)
You belong to one of the following categories:

First preference immigrant worker (EB1)
Second preference immigrant worker (EB2)- professionals with advanced degree or persons with exceptional ability
Third preference immigrant worker (EB3)

H-1B to The Green Card Process

For an H1-B holder who meets all the eligibility criteria to apply for the green card, the process includes several steps to be taken by the applicant and the sponsoring employer.

PERM Labour Certification

This step is required only for EB2 and EB3 Green Card categories.

It starts when sponsoring employer files a PERM application with the Department of Labour (DOL).

Immigrant Petition for Alien Worker

The sponsoring employer submits an Immigrant Petition for Alien Worker form I-140 to show that the foreign worker is eligible for a green card based on employment. Also, the sponsoring company must demonstrate that it can afford to pay the worker the wage shown in the recruitment process, which is part of the PERM application.

Adjustment of Status

You need to wait until your priority date is current before taking the next step: applying for adjustment of status.

First, correctly complete the I-485 form with all required information and submit it along with any supporting documents. If you rightly filed your petition, you can expect USCIS to schedule an appointment at your local Application Support Centre to provide your biometrics information (fingerprints, photo, and signature).

The final decision on your application for U.S. permanent residency will be forwarded to you in writing. In the case of a successful application, you will be sent an approval notice and, later on, your employment-based Green Card.

Attorney-client relationship: The Right Path to H-1B Extension and the Green Card

If you want to move to the U.S. and you need a visa, you probably came across a bunch of information that can easily make you confused and anxious: will I choose the proper visa, can I prepare and file all documentation by myself, how to remember all the steps and deadlines, am I eligible for the three year extension, etc.

First of all, relax and breathe. This journey should be challenging for sure, but you and your family should enjoy it. To avoid any unnecessary headaches, it is good to consider hiring an H-1B immigration attorney who has experience handling immigration-related affairs.

If you decide to choose Herman Legal Group immigration law firm, we will ensure that you understand the system and make the whole process streamlined and simple.

Over the years, Richard Herman and his team of immigration lawyers successfully handled hundreds of H-1B visa petitions for many specialty occupation workers.

Contact us and book your first consultation today with immigration law experts! Tell us the facts about your case, and we will make the winning strategy.

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