Extending H-1B Status Beyond Six Years As it Relates to Timely Filing for Permanent Residence
Immigration Law Associates, P.C receives many inquiries from foreign nationals in H-1B status regarding the best route to permanent residence. A most important point in this regard is that H-1B nonimmigrants must timely file their permanent residence documents, or lose the substantial advantages of the H-1B category: dual-intent and year-by-year extension past the maximum 6-year stay.
An H-1B visa petition is normally approved for three years, and is renewable for another three. However, the status may be extended beyond the sixth year in one-year increments under certain conditions - all of them in cases where qualifying documentation has been pending 365 days or more as of the date of the filing of the H-1B extension request. There are two such types of documentation:
- A labor certification application (Form ETA-9089) filed in support of an employment-based permanent residence case. The labor certification application itself may have been pending for 365 days, or it may have been approved, and the time since filing has amounted to 365 days or more. If it has been approved, it may be awaiting filing with the immigrant visa petition(I-140); or it must already have been filed with the immigrant visa petition(I-140) within an approved labor certification's validity period i.e. 180 days. It must not be revoked or expired.
- A pending employment-based immigrant petition (I-140) filed more than 365 days before the filing date of the H-1B extension request.
H-1B status may be extended three years beyond the maximum six year stay if the H-1B visa holder is also the beneficiary of an approved employment-based immigrant petition (I-140) who cannot file for adjustment of status (I-485) due to retrogression.
A foreign national in H-1B status who wants to preserve as many options as he or she can must therefore file a permanent residence case prior to 365 days before the expiration of the sixth year in H-1B status, which means he or she must begin preparing the case well in advance.
In our office, we see many examples of individuals who would have benefited by consulting us much sooner than they did. Especially in light of recent adjudication trends, it can take time to build an approvable permanent residence case, so an individual who comes to us with weak evidence right before the extension-eligible deadline has diminished his or her chances of case approval. The situation is even worse when such an individual has missed the deadline; if the case is denied he or she has no underlying H-1B status to fall back on and must leave the country immediately upon denial.
We recommend any H-1B visa holder, or any organization with H-1B employees, consult us in the second year of H-1B employment if filing for permanent residence is contemplated. This will preserve the individual's options regarding the timing of a permanent residence case, give employee and employer maximum time to structure an approvable case, and ensure that in case of denial, the foreign national is best prepared.
Immigration Law Associates, P.C. has been preparing employment-based permanent residence cases for almost twenty years. We handle PERM cases, employer-filed cases not requiring labor certification, and foreign national self-petitions. To identify your best option for gaining permanent residence or for sponsoring an employee for permanent residence, schedule a consultation. Call us at (847) 763-8500.