H-1B Visa Extension For The Seventh Year

The H-1B visa is one of the most popular nonimmigrant visas. It allows an alien to come to the United States and work on a temporary basis. The H-1B visa allows a worker to stay in the United States for three years. At the end of the first period, an alien may be entitled to an extension lasting another three years. The typical H-1B visa holder cannot obtain an extension after the six year period.

However, a recent developments in immigration law allows some H-1B nonimmigrants to receive an extension for the 7th year and beyond under certain circumstances.

WHO IS ELIGIBLE FOR THE 7TH YEAR EXTENSION?

The American Competitiveness in the Twenty First Century bill (AC-21) and recent Department of Justice regulations have allowed H-1B nonimmigrants to extend their stay past the usual six year limit. There are two (2) scenarios where an H-1B nonimmigrant is eligible receive the extension:

1. WAITING ON A LABOR CERTIFICATION APPLICATION (FORM ETA 750).

It is a common occurrence for an H-1B nonimmigrant to seek lawful permanent residence. To do this, the nonimmigrant usually applies for an EB immigrant visa. Most EB applicants must file a labor certification with the Department of Labor. The trouble for an H-1B nonimmigrant is that the labor certification can sometimes take months or even years.

Thus any nonimmigrant who is seeking an EB visa and has filed a labor certification application that has been pending for at least 365 days may obtain an extension beyond six years. These extensions are granted in one-year increments.

2. WAITING ON A VISA NUMBER AFTER FILING AN ADJUSTMENT OF STATUS APPLICATION (FORM I-485).

Assuming the nonimmigrant has completed the labor certification process, he or she then files two forms. Form I-140 to apply for the EB visa and Form I-485 to adjust the nonimmigrant’s status from the H-1B visa. The trouble for an H-1B nonimmigrant approaching his six-year limit is that an I-485 cannot be approved until a visa number is available. For natives of some countries (e.g., India or China), this can mean that the I-485 won’t be finalized for several years.

The new law allows a nonimmigrant who has an approved I-140 immigrant petition (EB-1, EB-2, or EB-3) and has been unable to finalize an I-485 (adjustment of status application) due to processing delays to apply for an extension beyond the six-year period. The nonimmigrant’s H-1B status in this scenario can be extended in three-year increments.

Any alien with an H-1B visa that wants to become a permanent resident must be mindful of deadlines. Timing is imperative for any person with an H-1B visa. The process to adjust from H-1B nonimmigrant to permanent resident should begin no later than the nonimmigrants fifth year. If you would like more information or help with your situation, please contact us. The experienced and skilled immigration attorneys at Shihab & Associates Co., LPA are fully prepared to help you along every step of the way.