January 18, 2009
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.
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
- 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.
- Appeal of Denied Labor Application Pending – If the alien’s labor certificate application is denied, the employer filed a timely appeal of such denial to the Board of Alien Labor Certification Appeals (BALCA), and a final decision on such appeal is not issued by BALCA, the alien is entitled to one year extension on his or her H-1B visa. This is true even if the employer who filed the original application for alien labor certification and subsequent appeal is not the same employer who now seeks to extend the H-1B visa beyond six years. It must be noted that there are very few cases who continue to be before BALCA at the present time.
- Approved Expired Labor or PERM Application Filed One Year Prior – if more than six (6) months had passed since the issuance of approval by the USDOL of a PERM or a labor application (also called certification), and the employer had not filed an I-140 within such six months period, the USDOL rules state that the certified PERM or labor application had expired and can never be used subsequently. Under this scenario, the alien is not entitled for extension of his or her H-1B visa beyond six (6) years.
- Approved Unexpired Labor or PERM Application Filed One Year Prior – If, however, six (6) months had not elapsed since the issuance of certified PERM application but 365 days had elapsed since the filing of such PERM application, then the alien is entitled to a one year H-1b visa extension beyond six years. This is true whether the employer filed or failed to file an I-140 within the six month period.a. Example: Employer “A” filed a PERM application for Joe Alien who had been in the US on H-1B visa at that point for 4 years and 9 months. Joe Alien is very lucky because his PERM application is certified 10 months after it is filed. Employer “A” now seeks to extend Joe’s H-1B visa for another year 2 months later when Joe had been in H-1B visa status for 5 years and 9 months. Employer “A” had not filed an I-140 at that point. Joe is entitled to an extension for one more year since six months had not passed since the PERM certification had been issued.
- Pending or Approved I-140 Petition Filed One Year Prior – Certain permanent residence applications do not necessarily require the filing of a PERM application. Those are permanent residence applications filed in the first preference employment based categories (EB-1) or an EB-2 petition seeking waiver of the labor certification requirement because the alien’s immigration is in the US National Interest. Similar rules apply to those aliens who are the beneficiaries of I-140 petition filed more 365 days prior to the request for extension beyond six (6) years. If an I-140 had been pending for more than 365 days, then the alien is generally entitled to successive one year extensions of his or her H-1B visa.
- Appeal Pending For Denied I-140 Filed One Year Prior – If the I-140 is denied, it is timely appealed, and the underlying PERM or the I-140 petition was filed 365 or more days by the time of requesting the H-1B visa extension, then the alien is eligible to receive successive one year extension on the alien’s H-1B visa beyond 6 years.
- Aliens Subject to “Per Country” Limitations -a. I-140 Approved and Less Than One Year Passed Since Filing of PERM or I-140 – If the H-1B alien could not file an I-485 application because his or her priority date is not current due to limitations on his or her foreign country chargeability (country of birth), and the alien has an approved I-140 petition, then the alien is entitled to H-1B visa extension for 3 years beyond six years. This is true even if the underlying PERM application or the I-140 had not been filed more than 365 days by the time the H-1B visa extension was sought.i. Example: Joe Alien was born in India but now holds British Citizenship. Joe’s employer files a PERM application on his behalf which is approved in 5 months. Joe’s’ employer filed his I-140 soon thereafter which gets approved in one month. When Joe tries to file an I-485, he was told that he could not do that because he is chargeable to India as he was born there. Because Joe Alien is unable to file his I-485 as a result of the” per country” limitations placed on his foreign country chargeability, he is able to file for 3 year extension beyond his six years. This is true even if 365 days had not passed since the filing of his PERM application.b. I-140 Pending and Less Than One Year Passed Since Filing of PERM or I-140 – If a PERM is approved and the subsequent I-140 is filed but less than one year had passed since the filing of the PERM application then generally the alien is not able to renew his H-1B visa beyond six years since rules in the preceding paragraphs do not apply. However, if the alien is subject to the “per country” limitations in that the alien had not been able to file a concurrent I-485 application along with the I-140 petition, then USCIS will allow the alien to request premium processing service for the pending I-140 within the 60 days prior to the expiration of the alien’s six year term on H-1B visa in order to get the I-140 approved then file for H-1B visa extension for 3 years as outlined in 6.a. herein.
i. Example: Joe Alien, a national of India, is in the US for 5 years and 6 months. Joe had never thought about applying for permanent residence in the US until recently. Joe’s employer files a PERM application on his behalf which miraculously is approved in 4 months. By this point, Joe had been in the US for 5 years and 10 months. Joe’s lawyer tells him that he is eligible to file for I-140 under the EB-2 preference category but because of the per country limitation placed on Indian nationals in EB-2 category, he is presently unable to file I-485 concurrently. Based on USCIS memoranda, Joe is able to file for I-140 under premium processing since Joe is now within 60 days of the expiration of his six (6) years on H-1B visa, get his EB-2 I-140 approved then file for a 3 year extension of the H-1B visa because Joe is unable to proceed in his green card application as a result of the “per country” limitation.
The rules governing the extension of H-1B visa are very complex. I have tried to simplify these rules by exploring all of the possible scenarios and sub-scenarios which may occur and the corresponding to rule that would apply based on memoranda recently published by the USCIS. The lawyers at Shihab & Associates, Co, LPA are keenly versed in all aspects of H-1B visa extensions. They have represented numerous large and small companies which regularly employ foreign nationals and have filed more than a thousand H-1B visas during the last few years.