Immigration Law Associates
Chicago Lawyer, Attorney: Green Card, H-1B, National Interest Waiver, J-1, Spouse, Fiance, Student Visa, VAWA, Citizenship, Removal, Korean, Polish, Japanese, Spanish

Extending H-1B status beyond the 6th year


Introduction
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



Timely Filing
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.

 

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