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:
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.
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
H-1B Visa Related Articles