Extending H-1B Status beyond the Regulatory Six-Year Limitation Period

The H-1B nonimmigrant visa program is designed to allow alien beneficiaries to enter the country and begin working for a U.S. employer for a period of three years. The sponsoring employer or a new employer may renew the H-1B visa for another period of three years. In other words, the Immigration and Nationality Act (INA) regulations clearly allow for the recipient of an H-1B visa to be in H-1B status for a total initial period of six years. The alien beneficiary may then return to his/her home country, remain there for one year, and only then will they be eligible to apply for another H-1B nonimmigrant visa.

However, there are ways to extend H-1B visa status beyond the six year limit. The Vermont Service Center (VSC) Liaison Committee has provided the following guidance for extending H-1B status beyond the six year limitation. If the alien beneficiary has completed one of the following conditions, they are eligible for an extension beyond the sixth year as long as one of the listed conditions have been met prior to the alien’s requested start date:

(1) 365 days or more have passed since the filing of any application for labor certification; and the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or (2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or (3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.

Additionally, If an alien beneficiary has time remaining under the regulatory H-1B six-year limitation period, the employer may file an H-1B extension petition requesting to recapture the remaining amount of time, plus a one-year extension pursuant to AC21 § 106. The one-year extension will be granted provided that:

(1) A labor certification is unexpired at the time of filing the extension petition, and (2) The labor certification or the I-140 petition was filed at least 365 days prior to the date the alien will exhaust 6 years of H-1B status pursuant to 8 CFR § 214(g)(4); and (3) The extension petition is otherwise approvable

Additionally, alien beneficiaries are eligible for a three year H-1B extension beyond the sixth year limitation period pursuant to AC21 § 104 as long as the alien is the beneficiary of an APPROVED I-140 petition AND is INELIGIBLE for an immigrant visa abroad because no visa numbers are available at the time the H-1B extension petition is filed.

For more information on the H-1B nonimmigrant visa program or if you have any questions regarding extending H-1B status, please contact our office to schedule a consultation.

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