H-1B EXTENSION

An H-1B immigrant may be admitted for maximum of 3 years at a time. The petition will be approve for a time period indicated on LCA.  There is 6 year maximum for H-1B status. 6 year limit does not apply to time spent outside of the U.S. Time spent in L status counts toward the 6 year maximum but time spent in H-4 or L-2 status does not count towards the 6 year limitation.

If a person stays for one year outside of the U.S. he or she may start a new 6 year cycle in H-1B status. The new period will be subject to cap.

240 Rule

240 Rule authorizes continued employment for up to 240 days for certain nonimmigrants whose status has expired, provided that the employer filed a timely extension of stay with USCIS.

“A nonimmigrant alien within the class of aliens described in paragraphs (b)(2) [A- 3], (b)(5) [E-1, E-2], (b)(8) [G-5], (b)(9) [H-1B, H-1B1, H-2A, H-2B, H-3], (b)(10) [I], (b)(11) [J-1], (b)(12) [L-1], (b)(13) [O-1, O-2], (b)(14) [P-1, P-2, P- 3], (b)(16) [R-1], (b)(19) [TN], (b)(23) [CW-1] and (b)(25) [E-3] of this section whose status has expired but on whose behalf an application for an extension of stay was timely filed pursuant to § 214.2 or § 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted 1 81 Fed. Reg. 2068-2084 (January 15, 2016).  However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.”

• If the H1B worker needs to travel during this time, they may not be able to return until they receive the new H-1B Visa. Premium processing is a viable option in this scenario.
• The 240 day rule is not a basis to renew the H-1B. It is rule that applies only after a bona fide H-1B renewal petition has been filed.

Procedure for extension of Stay

• Employer has to file a I-129 Petition while the beneficiary remains in valid status.
• New LCA must be submitted with I-129
• Extension could be issued for a maximum of 3 years at a time, up to a total of 6 years. There are exceptions under AC21 provisions. discussed below.
• Extensions are not counted towards H-1b cap.

An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B work visa status. This is known as “dual intent” and has been recognized in the immigration law since passage of the Immigration Act of 1990. During the time that the application for LPR status is pending, an alien may travel on his or her H-1B  work visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.

H-1B holder may file for Extension of Stay when:

• His Labor Certification has been approved;
• I-140, Immigrant Petition for Alient Worker has been filed or approved;
• I-485, Adjustment of Status application has been filed;
• Apply for Work Authorization, based on Adjustment of Status Application.

When to file H1B visa extension petition?

A person in H-1B status may file for extension of status 6 months before the expiration of his or her existing status. The majority of H-1B holders’ status expires on October 1. That means that they may apply for H-1B extension after April 1. It is advisable to file I-129 petition as soon as possible because USCIS takes it time to process the petitions. When the petition cannot be filed 3 months before the status expiration it is a good idea to apply for Premium Processing.

 American Competitiveness in the 21st Century Act (AC21)

American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit.

To be eligible for H-1B extension, Labor Certification or I-140 Petition has to be filed at least 365 days prior to the H-1B extension request. The H-1B status holder will be able to extend his status in one year increments until final decision is made. The request has to be made on Form I-129 with all necessary documentation for H-1B.

If the beneficiary is from a country for which the Priority Date is not current, such as India or China, and the beneficiary cannot file for adjustment of status, but his/her I-140 is approved, he can renew his H-1B status in three year increments until his Adjustment of Status application is approved or denied. Extensions are allowed in 3 year increments.

Another benefit of AC21 for H1B workers is that in case of “H1B transfer,” they can start working for the new employer upon filing of the new H-1B petition, i.e. they don’t have to wait for the approval notice of the second H1B petition.

What Counts towards the Six Years in H status. Your six-year total includes all the time you held H-1B’s for all employers you worked for, as well as any time you were in H-4 status. However, the time you spent outside the U.S. may be subtracted from the calculation, allowing you to recapture those days to effectively extend your six-year limit.