H1B Extension Beyond 6 Years:

Introduction

Foreign nationals in the U.S. under H1B status must be aware that the H1B comes with a six-year maximum validity.

Once H1B holders reach that six-year maximum, they must leave the U.S. and remain outside for at least one year before being eligible for a new six years of H1B. Furthermore, in order to return to the U.S. in H1B status, they have to go through the H1B Cap again by surviving the H1B lottery.

Of course, rules have exceptions and the 6-year limit on H1Bs is no different. There are several strategies available to seek an H1B extension after 6 years. Let’s examine these strategies here.

A. H1B Six-Year Limit: Who Is Exempt?

Foreign nationals in H1B status who work in the U.S.

• intermittently,
• on a seasonal basis,
• spend less than six months in the U.S. per year, or
• work part-time but reside abroad and commute to the U.S.

are exempt from the six-year limit.

If the employer can prove that the Beneficiary’s presence in the U.S. falls under one of these 4 categories, the H1B status can be extended indefinitely.

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B. H1B Extension After 6 Years Based On Recapture Of Time Spent Outside The U.S.

Under USCIS regulations, any time spent outside the U.S. does not count toward the maximum period of H1B stay in the U.S.

Time spent outside the U.S. can be recaptured and H1B extension after 6 years is permissible as long as the Beneficiary can submit documentary proof of the trips outside the U.S.

It is important to note that only full days spent outside the U.S. will be counted for recapture. Partial days spent in the U.S. count against the six years.

REMEMBER
In addition to a detailed list of U.S. departure and entry dates, examples of documents that should be submitted in order to document time spent outside the U.S. include:

a.Plane tickets/itineraries

b.Exit/Entry stamps in the passport

c.Record of Entry/Exits from CBP (the record of Entry/Exits from the CBP is not always accurate and should be supplemented by other documents, if inaccurate).

My Case Scenario
Tony

Tony is in the U.S. in H1B status. He is approaching the end of his fourth year in H1B and his H1B is expiring shortly. The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. However, Tony has spent an aggregate of 400 days outside the U.S. since he came to the U.S. in H1B status. Can he recapture the time he spent outside the U.S. now, before he has reached the end of his sixth year?

Yes, Tony’s employer can request that the time he has spent outside the U.S be recaptured.

Since the employer can request up to 3 years on a single H1B petition, the employer can request one year of recapture time for Tony in addition to the 2 years remaining. The employer can request that 365 out of the 400 days be recaptured, and request 3 years on the H1B extension petition. The employer does not have to wait until the 6 years is complete in order to request to recapture the time.

Additionally, once Tony’s H1B is about to expire again in 3 years, his employer can seek H1B extension beyond 6 years by requesting the remaining 35 days of recapture time in addition to any additional time he spends outside the U.S.

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My Case Scenario
Karla

Karla is in the U.S. in H1B status. Her first H1B approval notice was dated October 1, 2010 to September 30, 2013. Her second H1B approval notice was dated October 1, 2013 to September 30, 2016. It is currently April 2016 and Karla’s employer is preparing the H1B petition to extend H1B status based on recapture time. She first came to the U.S. in H1B status on April 1, 2011. Since coming to the U.S., she has spent an additional 100 days outside the U.S. How much time can Karla’s employer recapture?

Karla’s employer can recapture all the time she has not been in the U.S. since the beginning of her H1B validity dates- including the dates from October 1, 2010 to her entry into the U.S. on April 1, 2011, which is approximately 181 days. Thus, the employer can recapture 281 days (181 + 100) and seek H1B extension beyond 6 years.

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C. H1B Extension Beyond 6 Years In 1 Year Increments

H1B status can be extended in one year increments, indefinitely, past the sixth year if:

a.the foreign national has a pending or approved Labor Certification or I-140; and

b.the Labor Certification or I-140 was filed at least 365 days before the end of the sixth year or the requested H1B start date.

The H1B holder will not be eligible for this 1 year H1B extension after 6 years if he or she fails to file for Adjustment of Status or an immigrant visa within one year of the priority date becoming current.

In order to obtain the one year H1B extension beyond 6 years, the employer should submit:

1. A copy of the I-140 approval notice or receipt notice from USCIS showing that the I-140 was filed at least one year before the end of the new H1B validity period; OR
2. A copy of the certified Labor Certification (ETA Form 9089) with a filing date of at least one year before the end of the new H1B validity period (the Labor Certification must either be unexpired or accompanied by an I-140 receipt notice showing that the I-140 was filed before the Labor Certification expired); OR
3. Evidence that a Labor Certification is pending with the U.S. Department of Labor (evidence must be currently dated).

DID YOU KNOW
USCIS has clarified that an H-1B holder does not have to prove that the I-140 or Labor Certification was filed before the end of the sixth year, only that one of the applications was filed at least 365 days before the new requested validity date.

My Case Scenario
Rahul

Rahul is working as an Accountant at an Accounting Firm. He is in H1B status and his status expires on 5/31/2017 (the end of his 6th year). On 5/31/2016, his employer files a Labor Certification with the U.S. Department of Labor. After pending for 5 months, the application is chosen for Audit by the DOL, to which the employer responds. Approximately five months before his H1B expires, the employer inquires with the attorney regarding whether or not Rahul is eligible for an extension of H1B.

The attorney informs the employer that Rahul is eligible for a 1 year H1B extension beyond 6 years based on the fact that the Labor Certification will have been filed at least 365 days before June 1, 2017, the beginning validity date of Rahul’s 7th year. The attorney obtains evidence from the DOL ETA website showing that the Labor Certification is pending as of the date of the H1B extension petition filing and includes it with the H1B petition.

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My Case Scenario
Henri

Henri is in the U.S. working pursuant to H1B status. He has already entered his sixth year of H1B and his employer has not file the Labor Certification yet. 6 months before the end of Henri’s sixth year, on 04/01/2015, the employer files the Labor Certification. Henri’s sixth year ends on 10/01/2015. What are Henri’s options?

Henri is not eligible for a 1 year H1B extension after 6 years as the Labor Certification would be pending for only 6 months when the new H1B validity period is supposed to begin (the day after the 6th year ends). Henri’s options include:

1. Henri and his employer should first determine if Henri has any recapture time. If Henri has at least 6 months of recapture time, the employer can request that USCIS allow Henri to recapture the 6 months he was outside the U.S. until 04/01/2015. In the same H1B petition, the employer can also request that Henri obtain a 1 year extension of H1B because the Labor Certification will have been filed at least 365 days prior. With this option, the employer would be requesting that USCIS grant an extension of H1B for at least 18 months—Recapture Time + 1 year.
2. Henri can leave the U.S. before his H1B expires (or change to another applicable nonimmigrant status, e.g. H-4, B-2, etc.). The employer can then file an H1B petition requesting a beginning validity date of 04/01/2015, which is at least 365 days after the filing of the Labor Certification. Once the H1B petition is approved, Henri can go to the U.S. Consulate to obtain an H1B Visa stamp and return to the U.S. in H1B status to resume his employment.

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D. H1B Extension After 6 Years In 3 Year Increments

H1B status can be extended in three year increments, indefinitely, past the sixth year if the foreign national has an approved I-140 and the foreign national is unable to file for Adjustment of Status or apply for an immigrant visa because an immigrant visa number is unavailable, in other words, the priority date is retrogressed.

In order to obtain the three-year H1B extension beyond 6 years, the employer must submit a copy of the I-140 approval notice showing that the Priority Date is not current.

DID YOU KNOW
In order to obtain the 3-year H1B extension beyond 6 years, the employer need only show that immigrant visa numbers are not available as of the date the petition is filed. USCIS should grant the 3-year extension even if the priority date later becomes current on or before the H1B petition is approved.

My Case Scenario
Emily

Emily, who was born in China (People’s Republic) is in the U.S. in H1B Status. Her I-140 was just approved but she has been informed that she is unable to file for Adjustment of Status as her priority date (set by the Labor Certification filing date) is still not current, as she is a national of China. Her H1B is about to expire and she has reached the end of her 6th year.

Emily is eligible for a 3-year H1B extension beyond 6 years because her I-140 has been approved and she cannot apply for Adjustment of Status because of Priority Date retrogression. Emily will be able to continue to extend H1B status until her priority date becomes current and she can file for Adjustment of Status.

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My Case Scenario
Eduardo

Eduardo was in the U.S. in H1B status. He was forced to leave the U.S. because he had reached his six-year limit and the employer had not filed a Labor Certification in time for him to be eligible for a 1-year H1B extension after 6 years. He also exhausted all of his recapture time.

While waiting for enough time to pass so that the employer can file the H1B petition when he would be eligible for the 1-year extension of H1B, his Labor Certification was certified by the DOL. What are his options?

The employer has 2 immediate options:

1. Continue the current course and file the H1B extension requesting a 1 year extension with a starting validity date of at least 365 days after the Labor Certification was filed. Once approved, Eduardo can come back to the U.S. and resume employment.
2. The employer can immediately prepare and file the I-140. If the employer files via Premium Processing, USCIS should make a decision within 15 calendar days. Once the I-140 is approved, the employer can file an H1B petition and request a 3-year extension of Eduardo’s H1B as his priority date will most likely still be retrogressed because he is a national of the Philippines. Once approve, Eduardo can come back to the U.S. and resume employment.

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Conclusion

The six-year maximum validity for the H1Bs can cause stress for many nonimmigrants. It’s amazing how quickly six years can go by.

While there are several strategies available to seek an H1B extension beyond 6 years, it’s important that employers and H1B employees be aware of the specific options that are available in their situation so that they are not caught unaware leading to employment gap or having to leave the U.S.

If you have any questions regarding H1B extension after 6 years, or need help filing for an H1B extension beyond 6 years, contact our best immigration attorneys immediately for a FREE Immigration Lawyer Consultation. Our experienced attorneys will be happy to assist you.

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