H-1B Visa Extensions
Helping You Extend Your Visa in Columbus Ohio, Cleveland Ohio, Southfield Michigan and Washington, D.C.
H-1B visas are generally limited to a 6-year maximum, after which the foreign national must reside and be physically present outside the United States for a period of one year before a new H-1B petition can be granted, according to 8 CFR 214.2(h)(13)(i)(B). However, there are exceptions to this rule. Extensions of H-1B status are permitted in some cases due to provisions of the American Competitiveness in the 21st Century Act of 2002 (AC21).
If you have questions about extending your H-1B visa past 6 years, the Columbus immigration attorneys at The Law Firm of Shihab & Associates have decades of combined experience in this area and can advise you of your options. We will be honest in our evaluation of your unique situation and will take care to help you make an informed choice. Should we work with you on your visa extension, we will be with you every step of the way, pursuing a swift and favorable result.
H-1B Visa Extension Process
There are two ways you can obtain an extension beyond your sixth year in H-1B status:
- The first is through Section 106(a), which allows for unlimited one-year extensions based upon the filing of either a Labor Certification or the I-140 petition in non-Labor Certification cases, at least 365 days prior to the expiration of your H-1B six-year period.
- The second way is through Section 104(c), which allows for three-year H-1B extensions based upon an I-485 petition that cannot proceed due to per-country ceilings on the number of immigrant visas that can be issued each year. Therefore, if you are subject to visa retrogressions, and your I-140 has been approved, then you would be entitled to H-1B extensions beyond the 6-year limit.
According to prior U.S. Citizenship and Immigration Services (USCIS) guidance, in order to qualify for an extension of your H-1B status beyond the 6-year limit, you must have an approved I-140 petition. Provided that you meet all other H-1B statutory and regulatory requirements, your I-129 petition must request three years, and it must include a Labor Condition Application (LCA) covering such period.
The USCIS recognizes that in some cases, because of per-country visa limitations, it may take you more than three years to be eligible to adjust status to permanent resident status. Thus, despite the reference to a "one-time exception," you may still be granted more than one extension.
Therefore, all is not lost if you are in H-1B visa status, you are approaching your 6-year limit, and your I-140 and/or I-485 are still pending. You may qualify for an extension beyond the 6-year limit if you meet the above criteria. Our immigration lawyers at our Columbus, Cleveland, Troy, Southfield, or Washington, D.C. offices can help you understand your options and can help you proceed.
H-1B Extension Example Scenarios and Rules
In order to explain all of the rules related to H-1B visa extensions, it is best to illustrate all of the possible scenarios and the corresponding rule. Please note that the scenarios below are exhaustive. If the reader is able to find additional scenarios that are not covered herein, please contact our offices and ask to speak to one of our attorneys.
H-1B Visa Extension Response
Labor Certificate Application (PERM) OR I-140 Petition Pending for One Year.
The beneficiary is eligible to have her H-1B visa extended for one-year increments prior to the approval of the PERM application or I-140 petition.
Labor Certificate Application (PERM) Approved, Has Not Expired and Was Filed One Year or More Prior to the Filing of the H-1B Extension Petition
The beneficiary is eligible to extend her H-1B visa beyond six years by one-year increments.
Labor Certificate Application (PERM) approved more than 6 months prior to the filing of the H-1B visa extension and an I-140 petition was never filed.
In this case, the beneficiary is unable to extend her H-1B visa because the labor certificate approval has lapsed. This is true even if more than one year had elapsed since the filing of the labor certificate (PERM) application.
Labor Certificate Application (PERM) OR I-140 was denied and never appealed.
The beneficiary is unable to extend her H-1B visa since the PERM application has been adjudicated and no appeal is pending.
Labor certificate application (PERM) OR I-140 petition was denied and appealed but less than one year had elapsed since the filing of the PERM or I-140 or both.
The beneficiary is unable to extend her H-1B visa beyond six years because one year had not elapsed since the filing of the PERM application or I-140.
Labor certificate application (PERM) application OR I-140 petition was denied and appealed but more than one year had elapsed since the filing of the PERM or I-140 or both.
The beneficiary is able to extend her H-1B visa beyond six years for one-year increments until the appeal is decided. Please note that the appeal must be deemed "non-frivolous," which means that the employer has a good faith basis for the appeal and it is not merely filed to extend the beneficiary's H-1B visa status.
I-140 Petition is approved but the beneficiary does not have an immigrant petition immediately available (priority date not current) at the time of the H-1B visa extension.
If the priority date is not current pursuant to the most recent Visa Bulletin and the alien's I-140 petition is approved, then the alien is eligible for a three-year extension on her H-1B visa beyond six years. This is true even if the H-1B visa beneficiary has already filed her I-485. What matters is that the time of the H-1B visa extension, the priority date is not current.
I-140 Petition is approved and the beneficiary has an immigrant petition immediately available (priority date is current) at the time of the H-1B visa extension.
The beneficiary is able to extend her H-1B visa for one-year increments only. This is true even if the beneficiary has a pending I-485 petition.
If Your H-1B Extension is Denied or Rejected
It is important to establish there is a difference between a denial and a rejection of an H-1B extension. With a rejection, there is a technical error with your petition that can be easily fixed when you refile. However, denials can happen when the officer overseeing your case does not think you merit an H-1B extension.
An extension of your H-1B visa can be denied for a few reasons, including:
- You did not maintain the qualifications for your visa
- You committed a crime that nullifies your immigration status
- Your employer was found to have committed immigration fraud
For a denied extension, you would need to resolve the issue causing the denial, file a motion to appeal or reconsider, or petition your extension with a different employer.
Call Our Columbus Visa Extension Attorneys
Regardless of the number of days available for recapture, the law allows you to remain in legal status beyond your I-94 expiration date while the extension application is pending for up to 240 days or until USCIS makes a decision, whichever comes first. Therefore, if you find yourself in a situation where you cannot extend your H-1B status beyond the 6-year limit under the provisions of AC21, you may still be able to take advantage of law that allows you to recapture time spent outside of the United States, allowing you to extend the expiration date of your status.
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