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Under the current immigration law, an alien may remain in the United States with H-1B status for up to six years.
There are only two situations in which an H-1B status holder can extend his/her visa status beyond the 6-year limit.
1) If the H-1B holder has filed either a Labor Certification application or an I-140 petition 365 days before the expiration of the six-year limitation, and the LC or I-140 process is still pending, the H-1B visa holder may extend his or her H-1B on an annual basis beyond the six-year limitation. There is no upper limit on total years in H-1B extension under such a circumstance as long as the immigration process is still ongoing.
For example, Mr. Park’s employer filed PERM for him one month before Mr. Park reaches the five year anniversary of his H-1B. The PERM has been delayed due to auditing. Next month, Mr. Park is going to reach the final year of the six-year limitation of his H-1B status. Mr. Park’s employer may file an extension for Mr. Park now so that he can remain in H-1B status beyond six years.
Assuming Mr. Park’s PERM is approved before the six year anniversary of his H-1B, and Mr. Park has filed an I-140 and I-485, and both case are pending, Mr. Park will be able to extend his H-1B based on his pending I-140 and I-485 cases.
2) If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available for him/her due to the visa number retrogression (not eligible to file I-485 due to visa number limits), the H-1B visa holder may extend his/her H-1B on a three-year interval beyond the 6-year limitation. There is no 365-day requirement for this circumstance.
For example, Mr. Wang is an engineer from China and he retains our firm for a PERM case when he only has about ten months left for his total six-year H-1B period. Our firm successfully receives PERM approval within six months and files the I-140 petition immediately. Due to the visa retrogression for Chinese nationals, Mr. Wang is unable to file his I-485 together with his I-140. Fortunately, his I-140 gets approved within three months, exactly one month before he reaches his six-year H-1B limitation. We proceed to file an H-1B extension request for Mr. Wang based on the approved I-140, and receive H-1B approval for three years.
For another example, Dr. Rajeev from India files his NIW I-140 petition through our firm about six months before he reaches his six-year H-1B limitation. His I-140 was approved in three months. Dr. Rajeev is not eligible to file I-485 due to immigration visa number retrogression for Indian nationals. Dr. Rajeev is eligible to extend his H-1B for three years based on his approved I-140.
H-1B Not Limited to the Permanent Residency Petitioner Employer
For H-1B extension under the above two circumstances, an H-1B visa holder may extend his/her H-1B with any sponsoring H-1B employer. The H-1B holder is not limited to extending his/her H-1B with employer sponsoring his/her immigration petition.
For example, Mr. Lee is the beneficiary of a PERM cases sponsored by Company A, filed 365 days before his 6-year H-1B limitation. His PERM is approved and his I-140 is still pending when he reaches the six-year H-1B limitation. With the consent from Company A of continuous sponsorship and Mr. Lee’s promise to return to Company A upon receipt of his Green Card, Mr. Lee wants to work for Company B for a while. Company B applies for an H-1B extension for Mr. Lee for a one year interval based on the PERM case filed by Company A 365 days before the six-year limitation. Mr. Lee is eligible to receive H-1B extension from Company B’s sponsorship under such a circumstance.
The above information describes general rules and laws for your information. This is not a legal opinion neither should be construed as a legal opinion.
Individuals must depart from the U.S. for at least one year before qualifying again for H-1B status with another 6-year period. After the individual has departed from the US, s/he must undergo the same process required of their first H-1B visa. This includes securing an employment offer, submitting Form I-129, getting approval of the petition, and applying for a visa with the US consulate in the country they are residing in.
For Example: Jen, an Indian citizen, has reached the limit of the number of years she can remain in the United States with her H-1B visa, but she wishes to work in the US for another 6 years. Jen therefore returns home to India for one year. After she has an employment offer, Jen’s employer must submit form I-129 to and wait for approval of this petition, after which she can apply for a visa application with the US consulate in India. Upon approval of the applications, she may return to the US for up to 6 more years, provided her extension is approved after the first 3 years
For more information on H-1B, please refer to the following links:
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