EXTENDING AN H-1B PAST THE 6TH YEAR
Current immigration law states that an alien can stay in the United States with H-1B status for six years. Once the 6 years has been reached, the H-1B holder has to exit the country for no less than 1 year in order to be eligible for an H-1B status again. However, under the AC21 Act, a few H-1Bs may be eligible to request an extension of H-1B that exceeds the six-year limit.
There are currently two situations that enable an H-1B status holder to extend his or her visa past the 6-year period as follows:
- If the H-1B holder has put in an application for either an 1-140 petition or a Labor Certification application 365 days before the six year limit has been reached and the 1-140 or LC has not been rejected the H-1B visa status holder may lengthen his or her status each year past the six-year limit. In these circumstances there is no upper limit requirement as long as the current rules remain in force.
- If an H-1B visa status holder is in possession of an approved I-140 petition but the immigrant visa number is unavailable to him or her due to visa number retrogression which means he or she is not eligible to file a I-485 due to limits of visa numbers. In this case the H-1B visa status holder may be able to extend his or her status in intervals of three-years passed the 6-year limit. The 365-day requirement is not necessary in these circumstances.
Individuals have to leave the U.S. for no less than 12 months before becoming eligible again for an H-1B visa status for an additional 6-year period. Once the person has left the US and stayed abroad for a minimum of 12 months, he or she has to undergo the same procedure that was required for his or her 1st H-1B visa in order to get regain that status. This means securing an offer of employment, filing Form I-129, obtaining approval for the petition, and filing a visa application with the USA consulate in their resident country.
Return to “The H-1B Visa” to learn more.