Under current immigration law, an alien may remain in the United States under H-1B status for up to six years. Once the maximum of 6 years is reached, the H-1B alien has to leave the U.S. for at least 1 year to obtain a new H-1B status. However, under AC21 Act, some H-1Bs are eligible to extend H-1B beyond 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:

• If the H-1B holder has filed either a Labor Certification application or an I-140 petition 365 days before reaching the six-year limitation AND the LC or I-140 has not been denied, the H-1B visa holder may extend his or her status 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, Mr. Park has filed an I-140 and I-485, and both cases are pending, Mr. Park will be able to extend his H-1B based on his pending I-140 and I-485 cases.

• If an H-1B visa holder has an approved I-140 petition AND the immigrant visa number is not available to him/her due to visa number retrogression (not eligible to file I-485 due to visa number limits), the H-1B visa holder may extend his/her statusin three-year intervals beyond the 6-year limit. 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 is 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 an 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 status only with the employer sponsoring his/her immigration petition as long as he/she is in PERM path to green card and his/her PERM sponsoring employer is willing to continue to sponsor the immigration petition. However, he/she needs to come back to work for his/her PERM sponsoring employer either during I-485 or after his/her green card is approved.

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.

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 and remained abroad for at least 1 year, he/she must undergo the same process required forhis/her first H-1B visa to obtain that status again.  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 USCIS 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.

The above information describes general rules and laws for your information.  This is not a legal opinion and should be construed as a legal advice.

For more information on H-1B Visa, please refer on one of the following topics below:

H-1B Visa General Issues What is H-1B Visa H-1B Visa Requirements Application Process for a H-1B Benefits of H-1B Holders Limitations of H-1B Holders Documents Required for H1B Visa H-1B Extensions beyond the 6-Year Limitation Premium Processing and Related Issues H-4 Spouse & Children Visa H-1B1 Visas: Designated for Free Trade Agreement Workers H-1B2 Visas: Specialty Occupations Related to Department of Defense H-1B3 Visas: Designated for Fashion Model New Guidance on H-1B for Nurses Services that We Provide Frequently Asked Questions about H-1B H-1B Visa Filing Fees Attorney’s Fees

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