As immigration lawyer, I am presented with these questions frequently: what are the circumstances that would justify extending an H-1b visa beyond the maximum period allowed by statute? Or how can I extend my H1b visa beyond six years?
Congress dealt with this issue by passing legislation in 2000. The USCIS subsequently published several "guidance memoranda" in which it created criteria for extending H-1B visas beyond 6 years. In order to understand these criteria, I have created all the scenarios which will cause USCIS to either approve or deny an extension beyond the 6 year limit.
• Brief History
Prior to the enactment of The American Competitiveness in the Twenty First Century Act of 2000 (AC21) foreign nationals present in the US on H-1B visas, and who could not reach the point of I-485 in the permanent residence process, simply had to pack their bags and go home at the conclusion of the six (6) year term. The labor certification process (which forms the basis for the majority of permanent residence applications) had been riddled with protracted and overlapping administrative processes that took years. Such delays often caused aliens on H-1b visas to reach the maximum six (6) year limit and depart the United States prior to completing their permanent residence process. For those lucky ones whose employers were willing to continue the permanent residence process despite their departure, they were able to return back to the US after an interruption caused by the aforementioned six (6) year limitation.
The departure of these H-1B visa holders after six years of service working in their field in the US, created in my opinion, a lost opportunities for the foreign nationals, the employers and for the US at large. Many employers forfeited the services of highly trained and skilled employees as well as their investment in visa sponsorship, extensions and in applying for the permanent residence processes.
Congress realized this problem and in 2000 it introduced AC21 which sought to allow H-1B employees to extend their status beyond the maximum allowable six (6) year limit, if they reached certain stages in their permanent residence application processes.
• Permanent Residence Process
The most popular method of applying for employment based permanent residence is through labor certification, now called PERM. A PERM application is filed electronically before the US Department of Labor (USDOL) and it is intended to assure that the permanent employment of a foreign national does not displace equally qualified US workers. Once this process is complete, the employer must then file an immigrant petition for alien worker (I-140). Currently, employees are able to concurrently file an application for permanent residence (i-485) along with the I-140 petition. The I-485 application is the last step in the permanent residence process and its approval results in the issuance of permanent residence, also known as green card, to the foreign national.
Congress also created a quota system which assures that America continues to be a cross section of people from all nationalities. Hence, it instituted a "per country" limitation system to assure that nationals from one country do not become proportionally more populous in the US than others. This per country quota system favors foreign nationals who have higher academic or professional achievements coming from the same country. For instance, currently nationals of India have a significant backlog in the permanent residence process due to the proportionally higher number of Indian nationals who have applied for immigration when compared with other nationals. Within that specific Indian per country limitation system, those whose permanent employment requires the attainment of higher educational or professional achievements will receive their permanent residence status sooner. This is what is referred to as the employment based immigration preference system also known as EB-1, EB-2, and EB-3.
The Visa Bulletin, issued monthly by the US Department of State, publishes the dates that allow certain applicants to move forward with their permanent residence process based on the start date of their immigration process, also known as the priority date.
• H-1B Visa Time Recapture:
One of the most common ways to extend H visa beyond what might seem as a six year limitation is to recapture time the foreign national spent outside the US. So long as absence was not for brief vacations, the law allows the foreign national to precisely spend six (6) years in the US on H-1B visa. Hence, if an alien took a leave of absence for an extended period of time, he or she could request that such time be "recaptured" and the alien could request that his H-1b visa status be extended for those missed days. Another manner in which the alien could recapture lost time is through applying for an extension of the H visa to recover time between the initial issuance of the H-1b visa while the alien was outside the US, and the time that he or she enters the US on H status. For instance, if the H-1b visa approval was issued for a start date of October 1, 2003, but the alien, due to visa processing or other reasons, first enters the US on February 1, 2004, the alien is entitled to request a 4 month extension to be tacked on beyond September 30, 2009.
• Extension Beyond Six (6) Years When Labor Certification is Filed
1. PERM Application Pending For More Than One Year: If an alien has a pending PERM application which had been filed by his employer 365 days or more prior to the alien reaching 6 years on H-1B visa, then the alien is entitled to successive one year extensions. This is true even if the employer who filed the original PERM application is not the same employer who now seeks to extend the H-1B visa beyond six years.
a. Example: Employer "A" files a PERM application for Joe Alien who at the time of the application has already been in H-1B status for 4 years and 9 months. Six months after the filing of the PERM application, Joe Alien transfers his H-1B visa to Employer "B." One passes after the filing of the PERM application and it remains pending. Employer "B" now uses the fact that there is still a pending PERM application which Employer "A" filed for Joe Alien to request extension of Joe Alien's H-1B visa status for another year to continue to work for Employer "B." Under this scenario, the USCIS will approve this extension beyond six years even though It was Employer "A" who originally filed the labor application and Employer "B" filed the extension.
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