The H-1B visa allows a U.S. employer to hire an alien worker for a specialty position on a temporary basis. In general, a worker can stay in the United States on an H-1B visa for a maximum period of six years. Each petition allows for a maximum stay of three years until the six year limitation has been reached. However, there are a few circumstances where an alien can extend H-1B status beyond six years. The AC-21 Act passed in 2000 is the main legislation for H-1B extension beyond six years. Since its passage, the act has been the subject of much confusion. This article clarifies several of those issues by outlining various hypothetical scenarios where H-1B extension beyond six years is acceptable.
I. Extension Beyond Six Years Under Section 106(a) – 365 Days Rule
USCIS will extend H-1B status beyond six years if an alien has filed an employment based immigration petition or a PERM labor certification and the case has been pending for at least 365 days prior to the expiration of the 6th year. Under this scenario, if either 365 days have passed since the filing of either type of application or will have passed prior to expiration of the 6th year, an alien may extend H-1B status on an annual basis, so long as the green card process has not been closed. Even if an application has initially been denied, and the case is under appeal, an alien may still be eligible for an extension under this rule.
Mr. Carter is a petroleum engineer from Australia. He has a Master’s degree in petroleum engineering from the University of Texas at Austin. He is currently working for Exxon-Mobile on an H-1B visa. Mr. Carter’s employer filed an EB-2 PERM labor certification application for him on April 1, 2005. His H-1B status is set to expire on April 1, 2006. Under these circumstances, so long as the case is pending, Mr. Carter is eligible for an H-1B extension because he filed a PERM application 365 days prior to his six-year limitation. In fact, six months after his PERM application was filed, it was approved by DOL. Then, his employer, Exxon-Mobile, filed an I-140 (employment based immigration petition) on his behalf; Mr. Carter also concurrently filed an I-485. Is Mr. Carter still eligible for an H-1B extension beyond his sixth year?
The answer is yes. Under the AC 21 Act, Mr. Carter is still eligible for an H-1B extension because the PERM was filed 365 days prior to the expiration of the 6-year limitation, and the case has not yet reached a conclusion. Pending I-140 or I-485 cases do not break the conditions required for an extension under 106(a).
Dr. Xiang is a cancer researcher from China. Dr. Xiang is currently working in a laboratory at Baylor College of Medicine on an H-1B visa. Her H-1B is set to expire on January 15, 2011, the end of her sixth year. Dr. Xiang decides to file an NIW petition. Because it takes a couple of months to gather documentation, her immigration petition will not be filed until sometime around April 15, 2010. Unfortunately for Dr. Xiang, she will miss the 365 day filing cut-off for H-1B extension (in general situations). Is there any solution that can help Dr. Xiang maintain eligibility for H-1B extension beyond six years under the 365 day rule above?
Answer: It is possible. Time counted towards an alien’s H-1B visa is based solely on the time spent in the United States on H-1B status. Technically, if Dr. Xiang goes on an overseas vacation for three months or changes to H-4 for three months (if she has an H-1B spouse), that time will not be counted towards her H-1B. By going on vacation, Dr. Xiang is essentially pushing back her 6 year H-1B expiration date. For instance, if Dr. Xiang goes on vacation during the summer of 2010 for three months after filing an NIW on March 1, 2010, she will push back her H-1B expiration date to April 15, 2011. This makes her eligible for H-1B extension beyond six years under 106(a) of the AC-21 Act. In addition, if Dr. Xiang’s NIW is approved, she will also be eligible for an H-1B extension under the following scenario.
II. Extension of H-1B Beyond Six Years under Section 104(c) – I-140 Approval Rule
Under Section 104(c) of the AC 21 Act, if an alien with an approved I-140 petition cannot file an I-485 application or consular processing due to immigration visa number retrogression, he/she may file for H-1B extension beyond six years in three-year increments. The rule was enacted to offer temporary relief to those who have received I-140 approval but cannot continue to work in the U.S. after 6 years and cannot file an I-485 adjustment application (which has derivate work permit and travel without visa benefits) due to visa number retrogression. The conditions for extensions under this section are clear: 1) an approved I-140; and 2) a visa number is NOT available. With USCIS’ further clarification, the section applies to those who are in the United States on H-1 B status or in another valid, non-immigrant status. In addition, this rule also applies to those currently overseas. Furthermore, applicants who have already filed an I-485 and are subject to visa retrogression later on may qualify as well.
However, once a visa number becomes available, one with an approved I-140 will not be able to take advantage of this rule. Instead, he or she can file I-485 adjustment of status or go through consular processing to receive permanent residency.
Mr. Chen is from China. He is currently working for a large computer company under an H-1B. Mr. Chen’s wife is also in the United States on an H-1B. His wife has only been in the United States for 3 years, so she is eligible to stay for another three years under an H-1B. Mr. Chen’s six year H-1B visa is about to expire. Fortunately for him, he can change to H-4 status as a result of his wife’s H-1 status. Under an H-4, Mr. Chen self-petitioned for a National Interest Waiver (I-140) through our firm. His NIW was approved, but immigration visa numbers for NIW EB-2 are not available. Can he still file for an H-1B extension to change his status from H-4 to H-1B?
Answer: Yes. Mr. Chen can still file for an H-1B extension because he meets the requirements of Section 104(C); his I-140 has been approved, but a visa number is not available to him. It is not necessary to be in H-1B status when filing for H-1B extension under Section 104(c). However, as a general rule, he must be in a valid legal status (in this case, H-4) when he petitions to switch back to H-1B for an extension.
Mr. Queza, an Indian National, graduated from a master’s program in biology and started working as an H-1B technician for a reputable university. Under the university’s HR rule, the university will not sponsor an immigration petition for a technician. In the 6th year of his H-1B, his professor found a private company, Goodwill Inc., willing to sponsor him for a PERM Green Card. They agreed that Mr. Queza could start working for the company upon approval of his green card. Luckily, his PERM was approved; through premium processing, his I-140 petition was approved 10 days thereafter, right before the expiration of his sixth year. Unfortunately, visa numbers have retrogressed for his country and he cannot file an I-485. Can the university file an H-1B extension based on the I-140 sponsored by Goodwill, Inc.?
Answer: Yes. Based on section 104(c), the university can file an H-1B extension for Mr. Queza. There is no requirement that the H-1B extension petition under 104(c) has to be filed by the same employer that initially petitioned for the beneficiary. As a PERM green card is for a prospective position, Mr. Queza and the company are able to make such an arrangement under law.
Mr. Singh is on an H-1B visa and is about to reach his six year limitation. He files a National Interest Waiver and then leaves the United States to go back to India. After three months in India, his NIW is approved. However, a visa number is not yet available. Dr. Singh’s U.S. employer files an H-1B extension petition for him under 104(c) and the H-1B request is approved. Dr. Singh is able to apply and return to the U.S. with an H-1B visa.
III. A Fresh-Six Year H-1B after Absence from the U.S. for One Year
This last scenario is the most unlikely one. However, this option is available for H-1B holders who have exhausted all other possibilities and cannot rely on relatives for derivative status. In the event that an alien on an H-1B visa has reached the six year limitation, and for whatever reason cannot extend status, then that alien can leave the United States for one year. After one year, the alien will then be eligible for another, new six year H-1B visa. This method is usually a last resort for most. Even though this gives applicants six fresh years, the alien will be subject to the annual H-1B quota. So, in cases where the new H-1B employer is a quota subject institute, a new H-1B cannot begin until October 1st when the new fiscal year starts.
If an alien leaves the U.S. before the six year limitation and has stayed out of the U.S. for more than 1 year, he or she has the option of either filing a new 6 year H-1B or coming to the United States and using the remainder of his/her previous six years. In the latter case, the beneficiary will not be subject to the quota so long as he or she has been counted in the quota one time during the past six years.
IV. Other important reminders
H-1B extension beyond six years involving new employers is another point of confusion. In a memo addressing AC-21, USCIS clearly states that a one or three year extension can be filed by ANY employer, even in employer sponsored immigration petitions. For instance, say Dr. Wang works for Company A. Company A has filed an I-140 immigration petition for him; the I-140 has been approved, but a visa number is not available. When his H-1B is about to expire in the 6th year, Company A lays him off. Dr. Zhou then finds employment with Company B. As long as he meets one of the conditions outlined in the scenarios above, he is still eligible for H-1B extension beyond six years, granted Company A does not withdraw his approved I-140 petition.
Rules involving the H-1B visa are multi-layered and highly complex. As such, applicants benefit best when working with an experienced legal team. At Zhang and Associates, P.C. we have a lot of experience helping clients navigate through the H-1B process; that includes submitting applications and applying for extensions.
**Attorney Jian Joe Zhou is the Co-managing attorney at Zhang & Associates, PC (www.hooyou.com>). Joe has 10 years of experience in employment/business immigration and international law. Joe received his SJD, LLM, and MLI degrees from the University of Wisconsin Law School, and his LLB from East China University of Politics & Law. He may be reached at email@example.com . Ms. Kimberly Ninh contributed to this article.