H-1B Visa Extension
Requirements for H1B Visa Extension beyond 6 years:
Certain H-1B holders who have had a Labor Certification Application (or an employment-based preference immigration petition if the foreign national has been able to bypass the labor certification stage) pending for more than 365 days may be able to extend their H-1B visa beyond the 6-year limit, in 1-year increments. This can continue until the time a final decision is reached on the pending employment-based permanent residence case.
Unfortunately, this 7th-year extension is limited to persons who are applying for their green cards through the employment-based category; it is not available to persons with pending family-based petitions.
Another provision of the current statute permits an H-1B extension beyond the 6th year if the H-1B visa holder has filed an employment-based preference petition but is unable to proceed with adjustment of status to permanent resident status because of a backlog in priority dates.
Final Rule
When applying for an employment-based green card, your sponsoring employer must file an I-140 petition. Before the final rule, the regulations mandated that the I-140 needed to be submitted 365 days before the end of the 6-year maximum stay. Instead, the Federal Register has amended this to say that the petition must be filed at least 365 days before the beginning of your exemption.
H1B Renewal Process:
There are several ways that you can receive an H-1B extension after 3 years:
- 1 year H-1B Extension
The foreign professional may apply for an H-1B extension past 6 years in one-year intervals. This can occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.
- 3 year H-1B Extension
The foreign professional is able to apply for an H-1B visa extension status for up to 3 years if the applicant has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.
This is usually granted so that beneficiaries do not have to return home while they wait for their priority dates to become current. Because some people must wait over a decade for an EB-3 immigrant visa number to become available, this H-1B extension can be very helpful.
- “Recapture” Time
Many H-1B holders decide to travel internationally for extended periods of time. “Recapturing” that time spent abroad is one way to be granted an H-1B visa extension. The foreign professional may request an H-1B extension if he/she traveled outside the United States during the validity of the visa. The applicant is obligated to submit U.S. entry and return dates, I-94 copies, and related stamps.
Premium Processing
Fortunately, you are able to use the optional premium processing service to expedite your new petition’s processing time to 15 calendar days. Once you have been counted against the cap, you are no longer bound by the lottery dates (i.e. April 1st and October 1st). This means that using premium processing for an H-1B extension may be much more beneficial to your case than it would be if you were filing in the cap, where the mandatory six-month waiting period to start work usually renders premium processing obsolete.
To take advantage of this service, you will need to file an I-907 and $1,225 fee along with your I-129 petition. If the USCIS fails to process your petition in the promised time, you will receive a refund of your premium processing fee and your petition will be processed normally.
What If I Get an H-1B Extension Denial?
If your extension petition is denied, you will likely have a few choices available to you.
- You can identify the issue that led to the denial of your petition and re-file.
- You can file a legal motion with the help of your attorney
- You can petition for a different visa or green card
- You can leave the country
Fortunately, the USCIS will likely give you the reason for your denial, though they will also note that no appeal can be made to a third party concerning the decision.
Other Options
If your H-1B extension is denied, then you may want to consider applying for a different visa or green card that matches your qualification. For nonimmigrant visas, you have:
- TN visas for professional workers from Canada and Mexico
- J-1 visas for exchange visitors such as professors and medical students
- O-1 visas for those with extraordinary ability
- L-1 visas for the specialized employees, managers, and executives of multinational companies.
- If you are interested in making your stay more permanent, you can consider applying for a green card such as the:
- EB-1 green card for those with extraordinary achievements, outstanding researchers and professors, as well as the managers and executives of multinational companies.
- EB-2 for those with exceptional ability, those that have an advanced degree, and those that qualify for a National Interest Waiver.
- EB-3 for professional workers (those with bachelor’s degrees), skilled workers (those with more than two years of relevant work experience), and other workers (those with fewer than two years of experience).
How Our Immigration Lawyers Can Help
Our H1B Attorneys are highly skilled in assisting clients with required documentation for H1B Visa renewal/extension.
Our immigration lawyer specialize in employment-based immigration matters and can help you determine if you meet the qualifications necessary for the specific H-1B extension, so schedule your consultation today.
