H-1B Extension beyond 6 Year Cap

Published on    30 June 2014     Hits: 998

H-1B visa category has six year limits.  Generally speaking, an H-1B nonimmigrant who has spent six years in the United States in H status may not seek an extension or be readmitted to the United States in H Status unless the alien has resided and been physically present outside the United States for a year. 

Processing delays at the government level and immigrant visa quota backlogs have made this 6 year limit a pressing problem for many H-1B workers.  Then, what options do we have?  Are there ways to work around the 6 year limit?

The foremost common and obvious way is to file a labor certification application or immigrant petition by the 5thyear of the H-1B.  The reason is if a labor certification application or immigrant petition has been pending for 365 days or more at the time the alien’s six years in H-1B status will expire, the alien’s employer is able to file for one-year extensions of H-1B status.

It sounds simple but there are some special circumstances under this approach.

          1.     What if a labor certification or immigrant petition was filed past 5th year of the H-1B and the H-1B status expired?

In this situation, the alien whose status expired will have a gap but will become eligible to apply for a new H-1B visa when the labor certification or immigration petition has been filed and pending for one year.  That is, the expiration of H-1B does not preclude the alien from obtaining a 7th year H-1B once the above-mentioned one year condition has been met.

          2.     What if I-140 immigration petition has already been approved?

This is the best scenario.  The alien will become eligible to apply for three (3) year H-1B extension.

          3.     What if a labor certification or immigration petition has been denied and is being appealed?

USCIS’s current opinion is that a denial of a labor certification is not a final decision if it is being appealed.  As long as the appeal is pending, one can obtain H-1B extension for a year.  On the other hand, USCIS has not clarified its position on extension of H-1B when a denied immigrant petition is on appeal. 

          4.     What if a labor certification or immigration petition gets denied after 7th year H-1B extension has been granted?

It is not likely that USCIS will take actions to revoke the already approved H-1B extension.  As well, the extension itself continues to be valid until USCIS takes an action on it, and so it does not expire automatically.

          5.     What if the green card sponsor and H-1B sponsor are different?

The existing law does not require them to be the same.  The H-1B extension can be obtained with a different employer than the employer who sponsored the labor certification or immigration petition. 

So far, we have looked at options when a labor certification or immigrant petition has been filed.  What if green card process has not begun yet and H-1B 6thyear expiration is approaching?  What options do we have?

First, even if it’s late, the best strategy is to begin the green card case as soon as possible.  As explained earlier, even if 6thyear expires before a labor certification has been pending for one year, one can obtain extension once the one year condition is met.  Also, in some cases such as EB1 and EB2 without quota backlog, I-140 approval may come only in a few months, rather than a year, and the alien will be eligible for 3 year extension of H-1B.

Second, one should check if a self-petition (EB1 extraordinary ability alien or EB2 national interest waiver) is an option.  Even if the success rate may not be high, it can be an option if basic requirements are met.  While the case is pending, one can extend H-1B status as well as file another immigration case that has a higher success rate.

Third, file an extension to recapture time unused in H-1B.  For example, some people arrive in the US weeks after the H-1B start date stated on the approval notice.  Approval dates from different jobs may overlap, shortening the 6 year period. Some people spend vacation, business trips abroad.  One can review the actual employment dates in H-1B and file an extension to recapture time unused.

Fourth, change to another status.  One can check if L or E visa options are available.  Also, if one’s spouse is in L or E visa status, changing to the dependent spouse status will also come with the privilege of spousal employment authorization eligibility.  Finally, one can apply for B-2 visa status for temporary extension of 6 months while wrapping up things.

Fifth, work overseas. If the H-1B employer has overseas presence or can accommodate work abroad, one can work abroad for one year and return with a H-1B under the new quota.  During this time, short-term visits or business trips to the US are allowed.  However, please be cautioned that these visits need to be deducted from the one year overseas stay requirement. 

Lastly, if adjustment of status is within sight, use 180 days allowance under section 245(k).  Immigration law is usually draconic and does not allow one day of delay or beyond lawful stay, and maintenance of status is probably the most important rule in the immigration law.

However, in the cases of employment-based immigration, section 245(k) allows an alien to adjust status as long as his or her status has not expired for more than 180 days before the adjustment application is filed.  Therefore, if one is certain that Form I-485 application to adjust status will be filed within 180 days after the 6thyear expiration, then this option may be considered. 

Please be advised that one must exercise utmost caution when considering this option because if 180 days pass, it becomes not only impossible to file Form I-485 application but also 3 year bar to readmission will be triggered.  This option has to be discussed in detail with one’s legal counsel.  Even with well-planned strategies, many unknown factors can affect immigrants’ status and green card process.  The 6 year regulatory limit on H-1B status is particularly challenging for many.  I hope some of the thoughts and strategies introduced in this blog will help the readers with their immigration plans.

Copyright© Judy J. Chang, Esq. All rights reserved. (J Global Law Group. E-mail: contact@JGlobalLaw.com;www.JGlobalLaw.com)

Mario Guevara-Martinez