An alien may remain in the United States in H-1B status for up to six years. Once the six-year maximum is reached, the H-1B worker must leave the U.S. for at least one year, after which they will be eligible for a new H-1B visa. However, under the American Competitiveness in the Twenty-First Century Act (AC21), some H-1B holders are permitted to extend their status beyond six years.
Two Extension Scenarios
Both extension scenarios involve a nonimmigrant worker in H-1B status petitioning for immigrant status in the green card application process.
To apply for permanent residence, an H-1B alien might choose to file Form I-140 (i.e. employment-based immigrant petition) or a PERM labor certification application. If the worker filed one of these forms at least 365 days before the end of his six-year H-1B time limit and the application is still pending, then he can extend his H-1B status beyond the six-year limit.
In other words, he won’t be forced to leave the country since he’s waiting for a decision on his immigrant petition. The hypothetical worker can obtain such an extension on an annual basis, and there is no limit to the number of times he can obtain it, provided his immigrant petition is still pending.
Let’s consider Scenario 1 in the context of a real-world example.
Robert’s employer files a PERM application on his behalf on April 1, 2018, one month before Robert reaches the five-year anniversary of his H-1B approval (i.e. May 1, 2018). However, the PERM application becomes delayed due to randomly selected auditing. Fast forward to April 2019, and Robert’s six-year H-1B period is ending in just one month.
Will Robert have to leave the country if a decision on his PERM petition doesn’t come before May 1, 2019?
No, not necessarily. Since Robert’s PERM application is still pending, Robert’s employer can file an extension on his behalf so that he can remain in H-1B status beyond six years.
Now, if Robert’s PERM is approved before the six-year mark of his H-1B status, then Robert will need to file Forms I-140 and I-485 with U.S. Citizenship and Immigration Services (USCIS). Robert will be able to extend his H-1B status on the basis of these petitions, if the I-140 and I-485 are pending when his status lapses.
An alien worker files an I-140 petition, which is approved. However, an immigrant visa number is unavailable to the alien due to retrogression in the relevant category. In such a situation, the alien can extend her H-1B status in three-year periods of time beyond the maximum of six years.
Let’s consider Scenario 2 in the context of two real-world examples.
Ozzie is an aviation engineer from China. At the time he retains Zhang & Associates for a PERM case, Ozzie has only 10 months left before the end of his sixth year in H-1B status. Six months later, our PERM specialty team receives notice that Ozzie’s PERM application has been approved. Ozzie files his I-140 petition immediately thereafter. Because of severe visa backlogs for Chinese nationals, however, Ozzie cannot concurrently file his I-485 application with Form I-140.
With four months before Ozzie’s H-1B status expires, can Ozzie extend his H-1B status?
Yes, if his I-140 petition is approved before this date. If it is, then Ozzie’s employer can file an H-1B extension request based on the approved I-140 and the unavailability of visa numbers. If granted, the extension will last for three years, after which it must be renewed.
Dr. Hoolahey is an Indian national currently in H-1B status. Six months before his six-year maximum, Dr. Hoolahey files a National Interest Waiver (NIW) I-140 petition with the help of our experienced attorneys. Three months later, the NIW is approved. However, because of severe retrogression in visa numbers for Indian nationals, Dr. Hoolahey is unable to concurrently file his I-485 application with Form I-140.
Is Dr. Hoolahey eligible for an H-1B status extension beyond the six-year limit?
Yes. Based on his approved NIW I-140 application, and because an immigrant visa number is unavailable to him, Dr. Hoolahey is eligible to extend his H-1B status for an additional three years.
Who files for an H-1B extension?
In the two scenarios above, an H-1B holder may extend his or her status with any sponsoring employer. Foreign workers are not limited to having their original sponsoring employers apply for extensions, provided the new employer-petitioner is willing to sponsor both the immigrant petition and the H-1B application.
Let’s consider another real-world example.
Mr. Mister, an H-1B worker, is the beneficiary of a PERM case sponsored by Company Frick, which filed the labor certification application 365 days before Mr. Mister’s six-year H-1B time limit. The PERM is approved, but Mr. Mister’s I-140 is still pending when he reaches the end of the sixth year of H-1B status.
After Mr. Mister obtains Company Frick’s consent, promising that he will return to Company Frick after he earns a green card, Mr. Mister goes to work for Company Frack for a while. Company Frack applies for an H-1B extension for Mr. Mister on the basis of the PERM petition filed by Company Frick 365 days before Mr. Mister’s six-year limit in H-1B status. In this case, Mr. Mister is eligible to receive an H-1B extension on a yearly basis with Company Frack’s sponsorship.
Expiration of H-1B Status Without an Extension
After their H-1B status expires, alien workers must leave the U.S. for at least one year before they can qualify for an H-1B again. After a year abroad, they’re then able to initiate the H-1B application process, which they must do from scratch. This includes securing an employment offer, being the beneficiary of an approved Form I-129, and applying for a visa at a local U.S. consulate.
With a final real-world example, let’s clarify how the above information practically translates.
Sylvia is an Indian citizen who’s reached the end of her sixth year in H-1B status. She wishes to work in the U.S. for another six years, and so she decides to return to India. One year later, Sylvia accepts a prospective job offer with a U.S. employer, which submits an I-129 petition to USCIS.
Can Sylvia return to the U.S. to work for another six-year period, as she would like to?
It’s very likely. Once the I-129 petition is approved, Sylvia can apply for a visa with a U.S. consulate in India. Once she has a visa and is the beneficiary of a new, approved H-1B visa, she may return to the U.S. for up to six years, provided her extension is approved after the first three years.
The above information describes general rules and regulations, showing how they’re prone to impact real-world situations in ways that are clearer through examples. As is the case elsewhere on our website, none of the above should be construed as a legal opinion or legal advice. For a free initial consultation on your case, don’t hesitate to contact us.
Our experienced immigration attorneys are here to guide professionals through the complicated H-1B application process, and minimize any and all confusion or challenges. We understand how important an H-1B visa is to you, whether as the employer or the prospective employee. Our seasoned staff and years-long track record of success make Zhang & Associates the natural choice to facilitate your H-1B petitions.
For more detailed information on the H-1B category, including minimum requirements and USCIS policies, refer to the following links:
General H-1B Topics