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

H-1B extension and transfer


Extending H-1B Status
When an H-1B employee’s initial employment period is nearing its end, his or her employer may apply for an extension of his or her H-1B status for up to six years. A new Labor Condition Application (LCA) and Compensation Requirements] must be submitted with the extension petition. Extensions may be granted for up to three years depending on the number of years already in H-1B status. Any time spent in L-1 status will be counted against the 6-year limit. Any time spent outside the U.S. while in H-1B status may be recovered to enable a full six years in status.

If a foreign national holding H-1B status is the beneficiary of a PERM labor certification and an I-140 for employment-based permanent residence, he or she may continue to extend H-1B status beyond the 6-year limit. In order to take advantage of this flexibility, the PERM must be filed before the end of the worker’s fifth year in H-1B status.

An alien who has worked in H-1B status for six years must return abroad promptly to avoid any bar against returning in the future. If that person remains outside the U.S. for one year and then finds a new employer willing to petition for an H-1B, then he or she may enter and remain on H-1B status for another six years.


Transferring H-1B Status to a New Employer
To transfer or “port” an H-1B to a new employer, a new petition must be filed and another Labor Condition Application (LCA) and compensation requirements] must be obtained from the Department of Labor. Eligibility criteria and evidence required for the new H-1B do not change, but the petition may be filed at any time during the year because the position will not count against the H-1B cap.

A person currently in H-1B status may technically begin new employment when his or her new employer files an H-1B petition as long as:

•  he or she was lawfully admitted;
•  the new petition is legitimate; and
•  the petition was filed before the expiration date of the existing H-1B.

However, as a practical matter, it is always possible that USCIS will deny the new petition, leaving the person out of status. For this reason, it is generally safer to remain with the prior employer until an approval is obtained for the transfer.


Timely Filing
An H-1B extension will not be accepted if the employee’s H-1B status has already expired. However, if a valid extension petition is submitted before the worker’s authorized stay expires, he or she will be given 240 days of lawful presence and employment authorization from the date of expiration of the current H-1B. This allows the person to remain in status while USCIS is deciding the case.

 

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