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H-1B VISA Extension Beyond Six Years

I. INTRODUCTION:

1. The Six Year Limitation

H-1B visa holders are entitled to remain in the US in that status for a maximum period of six (6) years by statute. The six year maximum limitation can be reset upon the H-1B visa absence from the US for one year. Hence, once the H-1B visa holder completes her six (6) year term on H-1B visa, then departs the US for one full year, she is entitled to receive another six year term on H-1B visa. Such second six year term is subject to the numerical cap.

Example 1: Returning to the US on a Second Six Year H-1B Visa Term is Subject to the Cap:

Joe Alien completes six years in the US on H-1B visa (which was counted towards the cap) with Company A and departs the US for 12 months. Now, Joe receives a job offer from Company B who wishes to apply for his H-1B visa for a second six year term. This second H-1B visa is subject to the cap and Company B must apply for a new H-1B visa for Joe to start in the federal fiscal year that has available H-1B visas. If all H-1B visas were consumed at the time Joe receives this job offer, Company B must apply for Joe's H-1B visa for the following federal fiscal year starting on October 1.


2. Completing Six Years of H-1B Status After Alien's Departure

In contradistinction, if the alien does not complete her H-1B visa term (which was counted towards the cap) and departs the US, she is eligible to enter the US within 6 years of her departure, to complete her six year term. This opportunity is available to the alien because she was counted towards the H-1B visa cap within the six year period. If the alien attempts to return back to the US after six (6) years of her departure from the US, she would be subject to the H-1B visa cap.

Example 2: Returning to the US Before the Completion of the H-1B visa Six Year Term is Not Subject to the Cap

Jane Foreigner is in the US on H-1B visa working for Company A. Due to the economic conditions, Jane loses her job and returns to her home country at the conclusion of four (4) years. After 2 years of her departure, Jane is offered another job with Company B. Since Jane's departure is not more 6 years, she is eligible to return back to the US for two (2) additional years on H-1B visa.

II. H-1B VISA EXTENSION AFTER SIX YEARS:

Prior to the enactment of the American Competitiveness in the Twenty First Century Act of 2000 ("AC21"), there was no mechanism in the law for workers to extend their H-1B visa status for more than the maximum six (6) year term. It mattered not whether the employer, or the US for that matter, had substantial interest in the alien's continued employment, once the six year term ended the alien and the employer both found themselves in a precarious position. Some of the solutions that were available at that time, was to change the alien's status to another such O-1 Visa (alien of extraordinary abilities), or J Visa (Exchange Scholar) if she qualified. Put succinctly, if the alien had not received her permanent residence by the end of the six year term or was not eligible or able to change her status, she was destined to return back to her home country for at least one year.

Eventually the US government realized that it had a substantial and in some cases irreplaceable resources in the employment of skilled workers which culminated in the enactment of AC21 which included specific provisions for the extension of H-1B visa status beyond six years. Below is an enumeration of some solutions available for H-1B visa holders, some are not necessarily through AC21 provisions. However, an H-1B visa holder should consult an experienced immigration counsel in order to explore solutions for extending her H-1B visa beyond the six year limitation.

1. H-1B Visa Time Recapture:

An H-1B visa holder is able to "recapture" which means to retrieve any time she spent outside the US in order to complete a total of 2190 days (6 years x 365 days/ year) on H-1B visa. Initially USCIS resisted recapture of non-work related absence from the US such as vacations. Now, the USCIS will allow the recapture of any time the beneficiary spent outside the US into the beneficiary's H-1B visa status. It is important that the immigration attorney handling the H-1B visa extension tacks on time the beneficiary spent outside the US to the time remaining in her H-1B visa within the last extension petition to avoid having to file a subsequent extension petition for that sole purpose. That would be obviously an inefficient use of resources.

Example 3: Recapturing Vacation Time

Bob Newcomer is in the US on H-1B visa. Bob takes his family on vacation outside the US every year between 2 to 4 weeks. At the conclusion of 5 years, Bob's H-1B visa petition was up for extension. By that point, Bob had been outside the US with his family for a total of 105 days. Bob's immigration lawyer, which happened to be Gus M. Shihab, Esq. made certain to add 105 days to the period remaining on Bob's H-1B visa extension which was one year. In other words, the period requested in the last extension was one year plus 105 days, or 470 additional days on H-1B visa. Bob's family also received the same extension on their H-4 visa.


2. H-1B VISA EXTENSION AFTER SIX YEARS - DURING THE PERMANENT RESIDENCE PROCESS

In order to explain all of the rules, 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 the law firm at our number and ask to speak to one of our attorneys.

Example 4: Listing of All Possible Scenarios

Scenario 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.

III. CONCLUSION:

Extending an H-1B visa Beneficiary's status beyond six years is available through recapturing time spent out of the US, or through processing the permanent residence status. The Law Firm of Shihab & Associates, Co., LPA has experienced attorneys who have represented thousands of clients globally and throughout the United States in a wide array of immigration matters including H-1B visa extension beyond the six years. Contact the attorneys at The Law Firm of Shihab & Associates, Co., LPA wherever you are by e-mail or phone at 1-877-479-4USA (4872). Our slogan is "Innovative Representation, Proven Results."

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