Immigration Attorney

Extending H1-B Status Beyond the 6-Year Statutory Limit: What Options Do You Have?

Is It Possible to File Labor Certification During the 6th Year of H1-B?

  • It is often assumed that it is impossible to file an LC if one is in the sixth year of H1B
  • This is not exactly true
  • The LC can be filed at any time
  • Questions arise as to possible options for one nearing the end of six years in H1B status in the United States

What is AC21?

  • In 2000, Congress enacted the American Competitiveness in the Twenty-First Century Act of 2000[1](AC21) which, in part, added INA 204(j)
  • This provision allows certain employment-based adjustment of status applicants experiencing delays in the employment-based adjustment of the status process some flexibility to change jobs or employers while their Application to Register Permanent Residence or Adjust Status (Form I-485) is pending

“If eligible under INA 204(j), the Immigrant Petition for Alien Workers (Form I-140) (and underlying permanent labor certification, if applicable) may remain valid and the beneficiary of an approved employment-based immigrant visa petition in the 1st, 2nd, or 3rd preference category may transfer, or “port,” to a qualifying new job offer that is in the same or a similar occupational classification as the job offer for which the petition was filed. The new job offer may be through the same employer that filed the petition or a different employer.”

“These provisions are referred to as “portability.” Employment-based adjustment applicants who use such benefits are considered to have “ported” the petition filed on their behalf to the new job offer”.

How Can I get H1-B Extensions Beyond Six Years?

Rules for H1-B Extensions Beyond Six Years

  • In order to be eligible to extend H1B status beyond six years, it is necessary to qualify under two possible rules
  • These rules are part of the American Competitiveness in the Twenty-First Century Act (AC21)

The Rules are As Follows:

  1. The foreign national must be the beneficiary of an LC filing made 365 days prior (or I-140 in those cases that do not need the LC filing)
  2. the LC and I-140 must be approved, with no visa number (based on the priority date) available

LC or I-140 Filed Before End of Five Years in H1B Status

It is recommended that the employer file the LC application at least 365 days before the end of the six years of H1B status

Options if LC Filed in the Sixth Year

If an LC is filed once the sixth year of H1B status has begun, there are a number of possible options and outcomes. Some of these possibilities are described below:

Mr. Sharma was born in India, works at Yawmo Systems, Inc.

  • His six years of H1B time ends February 1, 2022. His company is going to file his LC on June 1, 2021.
  • In this example, Mr. Sharma’s six years will end before his LC will have been pending for at least 365 days.

The possibilities are as follows:

Option 1, Best Possibility: Fast Approval

  • If the LC is approved quickly, then Mr. Sharma’s employer could file an I-140 petition and request premium processing of that petition
  • If the I-140 is approved before the end of Mr. Sharma’s six years, he then would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year H1B extensions

Please note I-40 approvals are taking longer than usual

Another possibility could be:

LC and I-140 petition to be approved shortly after the end of Mr. Sharma’s six years:

In this case, he would be able to get three additional years of H1B time if he left the United States at the end of his six years or changed to another nonimmigrant status, such as H-4, in the interim and remained in the U.S.

  • It is recommended, you discuss possibilities with a reliable lawyer to ensure that there is a clear understanding of the options and risks
  • The U.S. employer would likely have to be involved in these discussions as well

Option 2: Recapture of H1-B Time

  • The six-year limit for H1B status is counted against time spent in the United States
  • Hence, if an individual has spent time abroad during the six-year period, s/he can recapture that time abroad

In this example, if Mr. Sharma spent enough time abroad, he could qualify for an extension of his H1B on that basis

This may be enough to bridge the gap between his six-year expiration and the 365-day point

Option 3: Leave the U.S. and Return After the 365-Day Point

  • One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one- year H1B after the LC reaches the 365-day point
  • The beneficiary/H-1B employee would be eligible for further H1B extensions, as long as his green card case remains in process
  • This is often a feasible option for positions that can be performed remotely, or for employers with offices outside the United States
  • This option can be combined with the recapture provisions to minimize the time spent abroad
  • However, using this option does not make the individual subject to the H1B cap or lottery

Option 4: Dependent Status

  • You might be able to change your status to a dependent visa
  • For example, your spouse’s H1B status, and has extended beyond the standard 6-year max pursuant to AC21, or has an approved I-140, this would make you eligible to apply for a change to H-4 status and an employment authorization document (EAD)
  • The same law applies for L2 status, and you will receive EAD nonetheless

Please Note:  each case is different; it is important to analyze your situation carefully and discuss the available options with a reliable and experienced immigration lawyer.

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