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H-1B Extensions: Recapture of Unused H-1B Visa Validity

Extensions of H-1B visas beyond the 6-year limit is permitted under Section 106(a) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC-21), PL 106-313, S106(a), provided that a labor certification, I-140, or employment based adjustment application, has been filed at least 365 days prior to the end of the 6-year H-1B maximum. If you have questions about H-1B extensions, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation

What if the labor certification, I-140, or I-485 cannot be filed 365 days prior to the end of the 6-year limit?

If you went outside the United States during the six years of your H-1B visa validity, you can use those days to extend your H-1B visa beyond the 6-year limit. The law allows you to do this because once you reach the end of your 6-year period, you will not have been in H-1B status for a full six years. The time you spent outside the United States may be subtracted from the 6-year calculation, allowing you to recapture those days to effectively extend your 6-year limit. According to law, you are only in H1B status when you have been lawfully admitted into the United States in that status. When you leave the United States, you are no longer in H1B status in the United States. Each time you travel abroad and reenter lawfully, you reenter in lawful H1B status.

There are situations where the labor certification, I-140, or I-485 cannot be filed 365 days prior to the end of the 6-year H-1B validity due to factors involving when the labor certification process is initiated and the length of time required. In this case, it may be helpful to take a look at whether you have made trips outside of the United States and whether recapturing of those dates prior to the end of the 6-year limit will artificially push the end date of your H-1B to qualify you for a 106a extension. Also, you may also look into whether you should go abroad during your current period of H-1B status in order to gain additional time for recapture for meeting the 106(a) extension requirement.

How long will this extend my H-1B status?

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. If you have questions about H-1B extensions or date recapturing, please contact our immigration attorneys or call The Law Firm of Shihab & Associates, Co., LPA at the nearest office close to you to consult with an attorney.

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