Columbus Investor Visa AttorneySeptember 30, 2011

A few years back this blog touched on a few of the specifics connected with extending an H-1B visa beyond six years. Given how many of our clients here in the Columbus, Ohio community work closely with the visa we thought another look at this aspect would be helpful.

What is the history of 7th year H-1B extension?

Prior to 2000, if a foreign national here on an H-1B visa could not reach I-485 (permanent resident) status within six year they were required to leave the U.S. What would often happen is that delays in the permanent residence application process meant H-1B visa holders would reach the end of their six years before completion. Since the situation meant employers often lost the investment they had made in skilled employees, Congress elected to introduce AC21.

What is AC21?

In 2000, Congress passed the “American Competitiveness in the Twenty-First Century Act,” or AC21. Among other things, AC21 allowed for H-1B workers to begin working for a new employer upon filing the petition instead of waiting for approval. It also provided the ability to extend the H-1B visa beyond six years if an ongoing PERM Labor Certification began at least 365 days prior to the end of the sixth year.

What is Time Recapture?

One way to extend an H visa past the six-year limitation is to “recapture” time spent outside the U.S. Since the law allows that visa holders can spend “precisely” six years in the country with an H-1B, a request can be made that trips outside the country be added to the back-end of the visa period.

The alien can also apply for an extension of the visa in order to recapture time between the visa’s issuance date and their actual entry to the U.S.

How can I get an extension beyond six years if I’ve filed for labor certification?

  • Your PERM application has been pending for more than a year: If an alien’s PERM application was filed at least 365 days prior to the six-year mark of the H-1B visa they may file for successive one year extensions. (Note: The employer who filed the original PERM does not have to be the same employer now seeking the extension.)
  • Pending appealing of denied labor application: If an employer filed a timely appeal of a denied labor certification application and is still awaiting final decision they are entitled to a one year extension of the H-1B visa as long as 365 days has lapsed since the filing of the PERM labor certification. Again, the employer who filed the original labor certification application does not have to be the same employer now seeking the extension.
  • Approved unexpired Labor/PERM application filed one year prior: If less than six months have elapsed since the certified PERM application was issued and 365 days have passed since the filing of that application – the foreigner has the right to receive a one-year extension beyond six years.
  • Pending or approved I-140 petition filed one year prior: Permanent resident applications that have been filed using the first-preference category (EB-1) and a specific sub-category of the second-preference group (EB-2 – “National Interest Waiver” – which allows the labor certification requirement to be set aside because the immigration is considered to be in the United States’ best interest) do not require the filing of a PERM application.

I-140 beneficiaries can also take advantage of these rules, when they file their petition more than 365 days prior to the extension request. If more than a year has passed since the I-140 has been pending, the foreigner is, in most cases, entitled to consecutive one-year extensions of their H-1B visa.

What are the H-1B extensions related to “per country” limitations?

  • Your I-140 has been approved and less than a year has passed since filing a PERM of I-140: If your priority date is not current because of country of birth limitations, but you have been approved for I-140 you are entitled to an H-1B extension of for three years beyond the six-year period.
  • This is still true even if your PERM application or I-140 was not filed more than 356 days by the time the H-1B was sought.
  • 1-140 is pending and it has been less than a year since filing PERM or I-140: If a PERM application has been approved and you have filed an I-140 within a year of the PERM application you will not be able are generally able to renew your H-1B beyond the six-year period. But there are options.

In Part 2 we will discuss these options.