H-1B Visas: Who Can Get an Extension Beyond Six Years?

The H-1B visa is a nonimmigrant visa used by an alien who will be employed temporarily in a specialty occupation within the US. Under previous law, an H-1B visa holder could only stay in the US for a maximum of six (6) years. After that time, an alien would have to remain outside the United States for one year before another H-1B petition could be approved. In 2000, the American Competitiveness in the Twenty-First Century Act (AC21) changed the rules. AC21 now allows some H-1B visa holders to extend their visas beyond 6 years.

Aliens Eligible for Extensions Beyond the Six Year Limit:

There are two scenarios where a person with an H-1B visa could extend his/her visa beyond the 6 year limit:

First scenario: An alien with an H-1B visa that has filed either a labor certification application or a Form I-140 immigrant worker petition may extend his or her H-1B visa. The alien in this situation must meet two requirements before becoming eligible for an extension.

1. The labor certification application or Form I-140 must have been filed 365 days prior to the expiration of the H-1B visa's 6  year limit.
2. The labor certification or I-140 process must still be pending.

If the two requirements are met the alien is eligible to extend his or her H-1B visa for 1 year. Additionally, there is no limit on how many times a person in this situation may request an H-1B extension. As long as the labor certification or I-140 is still pending, the alien may request an extension for each year.

Example of first scenario: Mr. Chen has been employed on an H-1B visa at a large company for five years. At the end of Mr. Chen's fourth year the company decides to file Forms I-140 and I-485 for Mr. Chen to obtain permanent residency. For one reason or another, Mr. Chen's applications are delayed. Because of the pending I-140, Mr. Chen is permitted to extend his H-1B visa for one year. If for some reason his case is still pending at the end of the seventh year, he can file for another extension.

Second scenario: An alien with an H-1B visa that has had his or her I-140 approved but does not have an immigrant visa number available because of the per country limits may file for an extension. There are two requirements here as well.

1.  The alien must have filed an I-140 and been approved.
   
2.  The alien must not have received the necessary immigrant visa number due to country visa number limits, also known as retrogression (immigrants from countries such as China, India, The Philippines, and Mexico have this problem).

If the two requirements are met the alien is eligible to extend his or her H-1B visa. In this scenario, where the alien has an approved I-140 and the "per country" quota doesn't allow him or her to file Form I-485, the H-1B extension can be for a three year period. This is different than the one year extension described in the first scenario. If an alien has not received his or her immigrant visa number in three years he or she may file for another three year extension. It is important to note that there is no requirement that an application be pending for one year or longer in this scenario.

Example of second scenario: Dr. Lin is a pathologist from China employed at a US pharmaceuticals company on an H-1B visa. During the fifth year of Dr. Lin's employment he begins the PERM process in order to obtain lawful permanent residence. Dr. Lin receives PERM approval and immediately files Form I-140. However, because he is from China, Dr. Lin cannot file his I-485 at the same time. If Dr. Lin's I-140 is approved before his H-1B visa's six year expiration, he may file an H-1B extension based on his I-140 approval. The extension will allow Dr. Lin to remain in the US while he awaits his immigrant visa number.

Important note: Using the second example, let us suppose that during year three of Dr. Lin's H-1B extension, he receives his immigrant visa number. Dr. Lin files his I-485 immediately. If his I-485 is not adjudicated by the time the first extension expires, Dr. Lin must file for another H-1B extension before the end of the third year. But does Dr. Lin file for a one or three year extension?

The answer is a one year extension. Generally speaking, if an alien's I-485 is granted they revert back to the one year extension described in scenario one.

The experienced and skilled immigration attorneys at Shihab and Associates are prepared to assist your business in obtaining extensions of H-1B visas. We have assisted Fortune 500 corporations, large universities, and smaller businesses with all of their H-1B visa issues. Whether your company needs to get one H-1B extension or two hundred, Shihab and Associates is ready to guide you through the process. To set up an initial consultation please contact us.