Extending H-1B Visa Status Past Six Years

May Extend H-1B Visa Time Past 6 Year Limit During Green Card Process.

On October 17, 2000, former President Clinton signed into law The American Competitiveness in the Twenty-First Century Act (“AC21”). Among other provisions, the new law provided for the extension of H-1B visa status past the six (6) year maximum limit during certain aspects of the green card process.

1. Approved I-140 Petition = Extension of H-1B Visa Status in 3 Year Increments.

  • Under Section 104 (c) of AC21, a beneficiary of an approved I-140 Immigrant Worker petition who is prevented from filing an adjustment of status application due to application of theĀ immigrant visa numerical limitationsĀ may obtain an extension of H-1B visa status in 3 year increments until he or she is eligible to apply for adjustment of status.
  • There is no requirement thatĀ an individualĀ have a labor certification application or immigrant visa petition pending for one full year prior to the expiration of the foreign citizenā€™s 6thĀ year of H-1B status.
  • However, thereĀ mustĀ be an approved I-140 petition to access this benefit.
  • Benefit does not apply to dependents who have reached 21 years of age.

2. Pending Labor Certification orĀ Employment Based Immigrant Petition = Extension of H-1B Visa Status for 1 Year.

  • Section 106 (a) of AC21 permits H-1B non-immigrants to obtain an extension of H-1B status beyond the 6-year maximum period, when:

(a) 365 days or more have passed since the filing of an application for labor certification (PERM); or

(b) 365 days or more have passed since the filing of an Employment Based I-140 Immigrant Worker petition.

  • Extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period.
  • Must establish that the above criteria were or will be met either on or before the requested start date on the H-1B extension application.
  • May beĀ eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period.
  • If no longer in H-1B status after the passage of 365 days from the filing of the labor certification application or immigrant petition, thus leaving a gap in status, then the extension of stay request cannot be granted.
  • A request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.

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