Immigration Attorneys Who Are Distinguished

H-1B Extentions And 6-Year Limit Issues

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 Twenty-first Century Act of 2002 (AC21). If you have questions about extending your H-1B visa past 6 years, the attorneys at The Law Firm of Shihab & Associates, Co., LPA have decades of combined experience in this area. Contact us for a consultation.

How can I obtain an H-1B extension beyond the 6-year limit?

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.

Do I need an approved I-140 to qualify for an H-1B extension beyond the 6-year limit?

Yes, according to prior 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.

If I qualify for an extension of my H-1B visa past the 6-year limit, can my extension be granted for a period of up to three years?

Yes, 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.

If I qualify for an extension of my H-1B visa past the 6-year limit, can more than one extension be granted?

Yes, 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. If you have questions about H-1B extensions, 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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