New York Lawyer's Legal Updates

H1B Extension Beyond Six-Year Limit: When Is It Possible?

Author: US Immigration Lawyer Alena Shautsova

H1B Extension

H1B is an excellent opportunity for a worker to come to the USA and engage in legal employment. But it comes with its limitations. It is not possible to hold it for more than 6 years! In addition, if you hold an L visa, the time spent in L visa, also counts towards the 6-year limit. Time spent in any other category apart from H-4 or in L status excluding L-2 is also subtracted from the available period of stay under H-1B. An individual who has utilized the maximum 6 years in H-1B status typically cannot obtain further H-1B status until residing outside the United States for a year. After this period, the 6-year eligibility clock can effectively "restart," making the individual eligible for a new period of H-1B stay. Short visits to the United States under a different status other than H or L are permissible but do not contribute towards fulfilling the required time abroad.

If you are holding H1B visa and would like to find out when and how to extend it beyond the 6-year limit, this blog article is for you! You may be aware that due to backlogs, often, it is not possible to submit your adjustment status (change to a green card status) in the USA at the same time as I-140 employment petition. You may be interested in the solutions of status extension because you may be hoping for an employment-related green card and you need to maintain your lawful non-immigrant status in the USA until the time you can file for your adjustment of status in the USA.
Extending an H-1B visa beyond the initial six-year period is possible under certain circumstances.

Here are the common ways to extend an H-1B visa beyond the six-year limit:

  1. AC21 Extensions: The American Competitiveness in the Twenty-First Century Act (AC21) allows for H-1B visa extensions beyond the six-year limit in certain situations:
    1. H-1B Extension Based on PERM Labor Certification: If your employer has filed a labor certification (PERM) on your behalf at least 365 days before the end of your sixth year in H-1B status you may be eligible for a one-year H-1B extension beyond the six-year limit. Note that once LC is approved, an employer needs to submit I 140 within 180 days to preserve the worker’s opportunity to extend the status further. AFM 31.3(g)(8)(A). The fact that I 485 has not been filed, does not bar the extension. If I 140 was denied and an appeal was filed and pending, an extension may be still granted.
    2. H-1B Extension Based on Pending I-140 Petition: If your employer has filed an employment petition I-140 on your behalf at least 365 days before the end of your sixth year in H-1B status you may be eligible for a one-year H-1B extension beyond the six-year limit. Note that 365 days need not to acquired prior to 6th limit be reached! An applicant may apply for the extension even if she is out of the US. One-year H1B extensions are also available for I 360 religious workers whose I 360 have been pending for more than 365 days. The extension may be filed 6 months in advance, provided that 365 days will be reached at the time of the adjudication.
    3. H-1B Extension Based on Approved I-140 Petition The alien is the beneficiary of an approved EB -1, EB-2, EB-3 immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number: then multiple extensions may be granted for the periods of 3 years at a time. An extension will not be granted where the beneficiary has an approved petition and fails to submit AOS or an immigrant visa within one year of priority date being current.
  2. H-1B Visa Extensions for Seventh-Year Recapture: If you spent time outside the United States during your H-1B status within the six-year period, your employer may be able to recapture that time to extend your H-1B status beyond the six-year limit. This is sometimes referred to as "seventh-year recapture." It is possible to request it before the end of the full period of H1B admission.

It's essential to work closely with your employer's immigration attorney to determine the best strategy for extending your H-1B status beyond the initial six-year period. Each case is unique, and eligibility for extensions depends on various factors such as your immigration history, employment circumstances, and eligibility for permanent residency. Not that to receive an extension one does not need to be in H1 status, but the extension must qualify as an extension and not a new application. For that reason, at times, an employee will have to leave the US, file a petition to recapture the days they spent outside of the US, return to the US on that petition, and then file for the extension. Add to the US complicated Immigration laws the fact that their interpretation is currently changing, and you will realize that the same case may be construed differently at different times by different USCIS offices!

Do not hesitate to reach out to us to book an appointment to see how we can help in your situation.

24 March 2024
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