Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and Nationality Act.
A foreign national in the United States on H-1B nonimmigrant status is limited to a maximum stay of six years. After the expiration of the six year period on H-1B status, alien workers must live outside the U.S. for at least one year before qualifying to obtain another H-1B visa.
These relatively strict rules of six year maximum can be stretched if a sponsoring employer is actively pursuing a permanent employment-based immigration path on behalf of a foreign worker or if H-1B holders do so on their own.
How To Extend H-1B status beyond six year period?
To be able to extend your H-1B status beyond the six-year limit and lawfully remain in the U.S. beyond six years (after expiration date in sixth year) without leaving the country, you must be on the way to an immigrant benefit or adjustment of your nonimmigrant status to lawful permanent resident status. In other words, you have to apply for the green card.
Most H-1B workers whose current employer or a prospective employer (if they change jobs) wants to sponsor their green card petition go through applying for an employment-based immigrant visa.
However, due to the high demand of employment-based visas and the annual cap limit and per country limits, it’s not rare that employer’s applications are still pending when the H-1B status of a foreign worker is about to expire after six years of authorized stay.
In such cases, H-1B workers may be eligible to extend their stay incrementally for up to three years per extension request or in one-year increments, and beyond six years. To do so, the sponsoring employer’s application for an immigrant visa (Form I-140), PERM application (permanent labor certification request), or the applicant’s petition to adjust to permanent resident status respectively, remains pending.
One and Three-Year Extensions Preconditions
No matter whether you are applying for a one-year H-1B extension or a three-year extension of your H-1B status, you will get approval if you maintain the valid status and continue to meet all of the requirements for H-1B status to be approvable for an extension.
What is AC21?
Under American Competitiveness in the Twenty First Century Act of 2000 AC21 and the 21st Century Department of Justice Appropriations Authorization Act of 2001 DOJ Act, if an H-1B employer can file one-year increments of H-1B extension after sixth year on H-1B and seek more than one extension.
In other words, the H-1B allows the maximum period of staying for three years. After such period, you can apply for additional three years, making it a 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 it can be renewed each year.
This provision allows certain employment-based adjustment of status applicants (EB-1, EB-2, EB-3) who experience delays in the employment-based adjustment of the status process flexibility to accept the new offer. The new job offer may be through the same employer that filed the petition or a different employer.
This feature used by employment-based adjustment applicants considered to have “ported” the petition filed on their behalf to the new job offer is referred to as “portability.”
Unfortunately, the AC21 does not allow a foreign worker to extend an H-1B if he or she is a beneficiary of a family-based immigrant petition .
Requirements for the Three-Year Extension of H-1B Status beyond the Six year limit
The foreign national in the employment based category needs to meet certain requirements to be eligible for a three-year H-1B extension.
These are:
- To have an approved Immigrant Petition for Alien Worker Form I-140 petition for one of the employment based preference petition: The EB-1 (priority worker), EB-2 (professional with an advanced degree or person with exceptional ability), or EB-3 (highly skilled or experienced worker) preference categories
- To be otherwise eligible for adjustment of status from H-1B worker to employment-based visa in one of the three mentioned preference categories, but the per-country limits or worldwide cap on employment-based immigrant visas (check Visa Bulletin here)
- To have been eligible to apply adjustment of status application but immigrant visa number is not available.
Under the current statutory interpretation, an applicant doesn’t have to be currently on H-1B status or in the U.S. to be eligible for the three-year extension of H-1B status.
The applicant is required to file an approved EB immigrant petition I-140 petition in one of the first three employment-based visa priority categories.
Provided that the applicant was ineligible to apply for adjustment of status at the time of the approved I-140 petition, they will be granted a three-year extension of H-1B status.
Since the extension is determined when you filed the I-140 petition, you will remain eligible for the extension of H-1B status even if you are eligible to apply for an I-551 permanent resident card of applying for an extension H-1B status.
Moreover, current practice allows a recipient of the three-year extension of H-1B status to receive subsequent extensions until their adjustment of status application has been approved or denied.
Requirements For the One-Year Extension of H-1B Status Beyond the Six year limit
The status must be renewed if the applicant remains eligible.
A request for a one-year extension can be combined with a request for an extension until the end of the six years by an H-1B worker.
Note that in this case, you need to leave the country and then return to recapture time on H-1B status, but this combination extension may not be for more than three years.
To qualify for a one-year extension of H-1B status, you will need to submit proof that you filed a PERM application (labor certification application LCA) 365 days before applying for the extension.
Also, documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification is required. In case the LCA is being appealed, you will have to prove that the denied LCA (form 9089) is under reconsideration by the Department of Labor or the Board of Labor Certification Appeals.
So, if you are an H-1B visa holder with pending adjustment of status applications to specific employment-based visa categories who want to obtain a one-year extension of stay under H-1B status, check whether you meet the following requirements:
- You have previously been issued an H-1B visa or have otherwise been provided with H-1B nonimmigrant status.
- At least 365 days have elapsed since your employer filed a labor certification application (or an I-140 petition if a labor certification was not required),
- Your labor certification application (or I-140 petition if labor certification was not required) has expired or has been denied when the one-year extension of status is sought.
What If a Labor Certification Application is Not Required?
If a labor certification is not required, you must submit the evidence that you filed an I-140 petition 365 days before applying for the one-year extension of H-1B status.
What if My Employer Withdraws The Petition?
It’s not very clear whether an H-1B worker is eligible for an extension of H-1B status if an employer withdraws the H-1B worker’s labor certification application or I-140 petition on account of the H-1B worker switching jobs according to H-1B status.
It is wise to consult with an experienced immigration lawyer and assess your particular situation in this situation. Contact our immigration law firm, and book your consultation.
Do I Have to Apply for the Three Year Extension of H-1B Status First?
The three-year extension is not a prerequisite to applying for a one-year extension of H-1B status.
However, the only requirement of 365 day is not that straightforward for applicants who begin their adjustment of status process within 365 days of their H-1B visa expiration.
In these cases, the applicants sometimes leave the United States before the expiration of their H-1B visa to preserve the remainder of their H-1B status while abroad.
Once 365 days from the filing of the labor certification application LCA or I-140 petition have elapsed, they apply for an extension of H-1B visa along with a request to recapture time spent outside of the country while on H-1B status.
If My Priority Date Is Current, Am I Eligible For Additional H-1B Extensions?
The three-year extension is not a prerequisite to applying for a one-year extension of H-1B status.
Again, the provision of the American Competitiveness in the 21st Century Act (AC21) allows an immigrant to continue the extension of H-1B visa in one-year increments according to Section 106(b).
So, you may be wondering whether you can continue to extend your H-1B once your priority date is current.
The answer is YES; you can continue the extension until a final decision is made to approve or deny your pending I-485 application if:
- Your PERM petition (labor certification application) or I-140 petition have been filed at least 365 days before you reached your six-year limit of H-1B time, and
- You file your I-485 application for adjustment of status within one year when your priority date became current. If you are outside the U.S., you need to apply for an immigrant visa within one year.
Can I Use Premium Processing?
Those with pending I-140 petitions in one of the employment-based visa preference categories who do not have an approved I-140 petition may request premium processing of their I-140 petition.
Through premium processing, U.S. Citizenship and Immigration Services USCIS decides upon petition within 15 days, so you can speed up the process and apply for the three-year extension instead of a one-year extension of your H-1B visa.
Can Associated H-4 Visa Holders of an H-1B Worker Apply for Extensions?
Dependents of H-1B worker qualify for H-4 status if the alien fils a Form I-539 with the filing fee and all necessary supporting documentation for the dependent.
H-4 family members of H-1B workers are eligible for visa extension (even beyond six years) if:
- They continue to remain eligible
- The principal H-1B worker procures the three or one-year extension of stay.
Still note that if your H-4 dependents hold H-1B, or at one time they held H-1B status, they must independently be eligible for a visa extension of H-1B.
While you wait for your priority date to become current after USCIS approved your I-140 petition, your H-4 spouse and/or dependents are eligible to apply for employment authorization and get an EAD (Employment Authorization Document) they will will be able to extend it as lons as you have an approved I-140.
Do You Need A Lawyer To Extend Your H-1B Visa?
If this information sounded complicated and you are not sure if you could do it all by your self, don’t worry- you don’t have to! An experienced immigration lawyer can lead you through the extension process and advise you on what documents and evidence to prepare, and do all these lousy paperwork instead of you. Call now and book your consultation with Richard Herman if you want to file an H-1B extension petition. Our law firm has extensive experience for more than 15 years in providing immigration services in the field of immigration law. Herman Legal Group has had the privilege to help a number of clients from all around the globe to get an H-1B visa, seek visa extension beyond six years or obtain permanent residence and adjust status, and obtain an employment based green card. Moreover, we speak 12 languages and build strong attorney client relationship!
