Extending H-1B Status Beyond Six Years
March 27, 2013
Except for those who do not reside continually in the U.S. and work in the U.S. only on a seasonal or intermittent basis, workers on H-1B status generally must live abroad for at least one year before returning to H-1B status. In short, if they want to restart the 6-year period they must remain outside the U.S. for 1 year.
However, H-1B workers are often unable to apply for adjustment of status before the end of the 6 years due to government delays or the heavy backlog for immigrant visas.
The delay could be due to the slow processing of the labor certification application or the adjudication of the I-140 immigrant worker petition. Per-country visa limits keep a worker with an approved labor certification and I-140 petition from filing an adjustment application because a visa number is not yet available to him/her.
A law passed in 2000, the American Competitiveness in the Twenty-First Century Act (AC21), as amended, allows H-1B workers in these two circumstances to file for an extension of their H-1B status beyond 6 years.
Under Sec. 106(a) of AC21, a post-sixth year extension is available to H-1B workers if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. In other words, the labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.
The length of extension permitted under Sec. 106(a) is one year, and subsequent one-year extensions are available until a final decision has been made to deny the labor certification application or I-140 petition or to revoke the approval thereof. Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.
Under Section 104(c) of AC21, if the H-1B worker is the beneficiary of an approved I-140 petition, an extension is available if he/she is otherwise eligible to adjust status except for the unavailability of an immigrant visa number. The extension can be for a three-year period in this case and is available to the principal H-1B beneficiary and eligible H-4 dependents.
H-1B workers affected by the visa backlog can continue to remain in H-1B status until their priority date is reached and they become eligible to file an adjustment application. Right now, there is a long waiting period for a visa in the third preference employment-based (EB-3) category for nationals of all countries, and there is also a backlog in the second preference (EB-2) for nationals of India and China.
Only workers who are in valid H-1B status may be issued an extension. Extension applications for workers who are “out-of-status” will not be approved unless the delay in filing was due to extraordinary circumstances beyond their control and the length of the delay was reasonable. They must also demonstrate that they have not violated their nonimmigrant status, remain bona fide nonimmigrants, and are not in removal proceedings.
Once the worker files an adjustment application and obtains an employment authorization document (EAD), there is strictly speaking no need for H-1B extensions under Sections 106(a) or 104(c). However, an H-1B worker who has worked using the EAD will immediately be out-of-status if his/her adjustment application is denied and the EAD revoked. Therefore, it is prudent for the worker to maintain H-1B status until he/she is approved for a green card.