Extending H-1B status beyond the 6th year
Generally, a person may spend no more than six years in H-1B status, and any time spent in L-1 status is counted against the six-year limit. However, a person in H-1B status may extend his or her status in one year increments beyond the sixth year if:
|•||A PERM Labor Certification Application (LCA) has been timely filed by an employer on the worker’s behalf for a permanent position; or|
|•||An I-140 Petition for Immigrant Worker has been timely filed by the employee (in self-petitioning categories) or his/her sponsoring employer; or|
|•||The employee has timely filed an employment-based adjustment of status to permanent residence and is currently waiting for a decision; and|
In this context, an application or petition is considered to be timely filed if it was received by the Department of Labor (DOL) or USCIS 365 or more days before the H-1B extension request for the 7th year is filed. In practical terms, this means that a PERM, I-140 or adjustment of status must be filed before the end of an H-1B’s fifth year in status to enable continued renewal of the H-1B in one year increments. These extensions are not counted toward the H-1B cap. H-4 status for spouses and dependents may be extended in the same way.
The LCA and I-140 may be filed by any employer wishing to hire the foreign national permanently in an appropriate position. If the LCA, I-140 or adjustment of status is denied for any reason, the foreign worker’s H-1B may not be renewed beyond its current expiration date.
We often encounter clients in H-1B status who would have benefited by consulting us much sooner than they did. In light of ever-tightening adjudication standards, it can take time to build an approvable permanent residence case. We recommend that an H-1B visa holder or organization with an H-1B worker consult us in the third year of H-1B employment if filing for permanent residence is contemplated. This will preserve the person's options and give both employee and employer maximum time to structure an approvable case.