New York Lawyer's Legal Updates

Extending H1B Status After 6 Year Cap

Employment Immigration Attorney Alena Shautsova

An H1B worker may stay and work in the U.S. for a total of 6 years only. It means, that upon conclusion of the 6 -year period, the H1B holder has to leave the U.S., and will not be able to qualify for another H1B visa, unless he/she spends 1 year abroad.

However, recognizing the need of the U.S. employers in good foreign workers and hardships that U.S. employer faces when it would like to offer to a foreign worker a permanent position despite the cap, the Congress passed special provisions allowing extensions under certain circumstances. See the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA), Public Law 105–277, div. C, tit. IV, 112 Stat. 2681, and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), Public Law 106–313, 114 Stat. 1251, as amended by the 21st Century Department of Justice Appropriations Authorization Act, Public Law 107–273, 116 Stat. 1758. It should be noted that recently, DHS proposed new rules to codify these acts and make them a part of the DHS regulations.

In short, there are two ways, one’s H1B status may be extended beyond the 6 year limit.

The first exception is a “One time protection under per country ceiling” which may be granted by the Attorney General if the foreign national is the beneficiary of an approved I-140 immigrant visa petition. In this case, the petitioning employer will ask to extend an employee’s H1B status for three more years. There is no limit on the number of times such a request can be submitted, as long as the I 140 is approved and the person is waiting for the immigrant visa number to become available.

The second exception is an “Exemption from Limitation,” which allows the Attorney General to extend, in one year increments, the status of an H-1B visa holder on behalf of whom an employer has submitted a labor certification petition. However, the labor certification has to be filed at least 365 days before the submission of extension request. Also, at the time of extension, the labor certification application cannot be revoked or expired.

There is also an opportunity to “recapture” the time spent abroad for those individuals who traveled overseas while working in H1B status in the US. The “recapture” request is usually submitted with the extension application.

03 February 2016
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