H-1B Extension and Beyond : New Rules and its Beneficial Effects

By Aashna Shrivastava

Your H-1B status in United States is nearing six years limitation? Relax, there is a rescue to it.

Travelling abroad is a strenuous process nowadays which not only includes getting a visa but also keeping up with the regulations related to it. Of course if you don’t get a visa then there is no problem because you will be staying where you are. But for those who already are on visa, adhering to its requirements is crucial to prolong your stay.

H-1B visa does not allow its holder to be in the U.S. permanently. It is a non-immigrant visa i.e. this visa does not confer a permanent status to its holder as an immigrant. It expires after a specified period of six years. The H-1B visa is not granted for more than three years but it may later be extended for another three years.

In order to get H-1B approved by U.S. Citizenship and Immigration Services (USCIS) the job must fall under the purview of specialty occupation, which meanstheoretical and practical application of a body of highly specialized knowledge to fully perform the occupation and which requires the attainment of a bachelor’s degree or higher in a specific specialty as a minimum for entry into the occupation in the United States

Upon expiration of H-1B, the alien, i.e. a person who is not a citizen or national of the United States, must either obtain extension on H-1B visa or apply for a different visa or consider leaving U.S. After expiration of H-1B visa, the alien loses his status and can be deported. Once the maximum limit of H-1B i.e. six years is reached then the alien has to leave U.S. for minimum of one year to obtain a new H-1B status.

American Competitiveness in the 21st Century Act (AC21) provides two ways to extend the H-1B status beyond its limit of six years you must satisfy one of the following circumstances –

1. If the beneficiary on H-1B status has filled a Labour Certificate (LC) or I-140 (Immigrant Petition for Alien Worker), 365 days prior to the completion of six years H-1B limitation and the same has not been denied then the beneficiary may seek annual extension beyond the six year limitation period as long as the immigration process is going on; or

2. If the beneficiary on H-1B status has an approved I-140 petition and due to visa number retrogression is not entitled to file I-485 along with I-140 then beneficiary’s status may receive H-1B approval for three years beyond limitation period.

Extensions under the above two circumstances can be done by any sponsoring H-1B employer. There is no limitation with respect to the employer sponsoring the immigration petition till the time the beneficiary is in Program Electronic Review Management (PERM) path to green card and the PERM sponsoring employer is willing to sponsor the petition. The only condition attached to this is that the beneficiary has to come back to work for PERM sponsoring employer either during I-485 or after green card approval.

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