Extending your H-1B Status: Complete guide [2023]

Did you know that a foreign national can be granted an H1B visa for a maximum period of three years and then can be extended for another three years?

This is to say, that there is a time limit of 6 years for staying in the U.S. under H1B visa status, and after its completion, the foreign national ought to spend one full year uninterrupted outside the U.S. to restart all over again and regain eligibility for H1B visa status.

Extending / Renewing your H-1B Status

Well, it’s quite natural for foreign nationals to contemplate extending or renewing their H-1B visa, especially when seeking new job opportunities, pursuing their green cards, or simply desiring to continue living and working in the United States. It’s noteworthy that the H1b visa is a beneficial asset, offering important benefits to its holders

This comprehensive webpage provides detailed information on the entire process, including updates on H-1B extension processing times and other pertinent news.

In certain circumstances, extending your H-1B visa beyond the usual 6-year limit may be possible. One such circumstance is if you are the beneficiary of an approved I-140 petition. Additionally, if you are the beneficiary of a PERM or I-140 petition filed over 365 days ago, you may also be eligible for an extension.

Another potential avenue for extending your H-1B visa is if you have spent time outside of the US during the past 6 years while in H-1B status. This time can be “recaptured” and applied to your visa extension, potentially allowing you to remain in the US for a longer period.

Requirements for H-1B Visa Extension Beyond 6 Years

Certain H-1B visa holders applying for a green card through the employment-based category may be able to extend their visa beyond the 6-year limit, in 1-year increments. This can continue until the green card application is approved or denied.

There are two ways to qualify for this 7th-year extension:

• Have a labor certification application or an employment-based preference immigration petition pending for more than 365 days.
• Have an approved employment-based preference immigration petition but be unable to proceed with adjustment of status to permanent resident status because of a backlog in priority dates.

H-4 spouses and dependents of H-1B visa holders who qualify for the 7th-year extension are eligible to apply for employment authorization.

H-4 EADs (Employment Authorization Documents) are valid as long as the H-1B visa holder has an approved employment-based preference immigration petition.

Just a heads-up in case your green card application is approved, your spouse and children can easily retain their work permits. However, in the worst scenario when you switch employers or your employer withdraws the green card application, your family members’ work permits will expire concurrently with yours. Consequently, they will be ineligible to renew their work permits unless you obtain a new approved green card application.

Temporary Rule to Increase Automatic Extension Period for EADs for your H-1B Visa

USCIS Director Ur M. Jaddou said, “As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient, … This temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families while avoiding further disruption for U.S. employers.”

To put it simply, if you’ve got a pending EAD renewal application, you may be eligible for an automatic extension of your employment authorization for up to 540 days from the expiration date on your current EAD. This temporary increase is effective from May 4, 2022, to October 26, 2023. After October 26, 2023, the automatic extension period for EADs will return to 180 days for individuals who file I-765 renewal applications.

H-1B Extension Processing Time 2023

Certainly, H1B visa is in high demand, and therefore, the processing takes more time than expected. Generally, it takes three months for a regular application to get approved, whereas, H1B extension processing time, similar to the regular application process, depends wholly on the service center and its caseloads, and it roughly takes 4 weeks to more than 5 months depending on if RFEs are issued.

USCIS Processing Times tool check it out to find recent information. Choose the form you are filing, the category, and then the field office or service center processing it and you should consult your attorney.

H1B Renewal Process

If you plan to extend your H-1B visa, it’s essential to be aware of a few crucial details. The process is quite similar to the original H-1B petition package, but you’ll only need to provide one copy of each document. You can submit your extension request up to 6 months before the H-1B visa’s expiry date.

Your employer must file Form I-129 and provide all the essential documents, including a new Labor Condition Application (LCA) if you plan to extend beyond the initial three-year period. Your employer must wait for the approved LCA before filing Form I-129 on your behalf.

Notably, if you file your extension request before your visa expires, your legal status and ability to work for your sponsoring employer will be “locked in” for 240 days beyond the expiry date of your H-1B visa. Therefore, it’s vital to file your extension request on time to avoid any issues with your legal status.

H-1B Visa Extension Options

Here are the ways you can receive an H-1B extension after 3 years:

AC21 §106 H-1B EXTENSIONS (1 YEAR INCREMENTS)

8 CFR 214.2(h)(13)(iii)(D)(1)

H-1B visa holders who have been waiting for their green card application to be processed for more than 365 days may be eligible to extend their H-1B visa beyond the 6-year limit in one-year increments. Your employer can file Form I-129 to request an extension of your H-1B status. The extension request must be filed before your current H-1B status expires.

8 CFR §214.2(h)(13)(iii)(D)(2)-(3)

Extensions for LC or IV petitions are only available until a final decision is made or the application is closed. However, a decision to deny or revoke is not final until appeals have been exhausted.

8 CFR §214.2(h)(13)(iii)(D)(4)

To be eligible for an H-1B extension beyond 6 years, you must be named on the LC. If you were substituted for another alien before July 16, 2007, you may still be eligible.

8 CFR §214.2(h)(13)(iii)(D)(5)

Advance Filing can be done for an H-1B extension beyond 6 years within 6 months of the requested start date. One can also apply before 365 days have passed if the LC or IV petition is filed at least 365 days before the authorization period begins. Additionally, I can request the remaining time in my 6-year limit, including recapture time, when applying for a 1-year AC21 extension.

3-year extension Based on Approved I-140 petition under AC-21 106(c) – Per DHS final rule, taking effect on January 17, 2017

AC21 §104 H-1B EXTENSIONS (3-YEAR INCREMENTS)

8 CFR §214.2(h)(13)(iii)(E)(1)

Allows for H-1B status approval beyond 6 years in 3-year increments for approved EB-1, EB-2, and EB-3 beneficiaries who can show that an immigrant visa is unavailable due to over-subscription.

8 CFR §214.2(h)(13)(E)(2)

Extensions can be granted until a final decision is made on IV revocation, approval/denial of IV, or adjustment of status application.

8 CFR §214.2(h)(13)(E)(3)

As of now, no H-1B status is required. Also, to qualify for an AC21 3-year H-1B extension, it’s not mandatory that the beneficiary must have an H1B status.

8 CFR §214.2(h)(13)(E)(4)

Exemptions may be asked by the subsequent petitioners and the H-1B petitioner should not be the IV petitioning employer.

8 CFR §214.2(h)(13)(E)(5)

One can file for an H-1B extension beyond 6 years within 6 months of the requested start date. You can also request time remaining in 6 years at the same time as requesting a 3-year AC21 extension.

8 CFR §214.2(h)(13)(E)(6)

It’s applied only to the principal beneficiary; spouses in H-1B status cannot piggyback.

How can I Recapture Time Spent Outside the US?

If you spent time outside of the United States during the six years of your H-1B visa validity, you may be able to use those days to extend your visa beyond the standard six-year limit. This is because you won’t have been in H-1B status for a full six years by the end of the period. To extend your six-year limit, you can subtract the time spent outside the United States and recapture those days in your H-1B Renewal / Extension petition. Keep in mind that time spent beyond the six-year limit granted under AC21 eligibility cannot be recaptured.

240 Days Rule:

H-1B visa holders can continue to work for their current employer for up to 240 days after their visa expires if they are waiting for a decision on their extension request.

This is known as the 240-day rule, and it is found in 8 C.F.R. § 274a.12(b)(20).

To be eligible for the 240-day rule, you must:

• Be an H-1B visa holder in valid status.
• Have filed a timely application for an extension of your stay.

If you meet these requirements, you are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of your authorized period of stay.

Note that the 240-day rule is not a basis to renew your H-1B visa. It is a rule that applies only after you have filed a bona fide H-1B renewal petition.

If you have any questions about the 240-day rule, you should consult with an immigration attorney.

Cap Exempt New H-1B

If your H-1B visa has expired within the past 6 years, you are eligible for a new cap-exempt H-1B.

Your new employer must apply for the cap-exempt H-1B with USCIS, and you may commence work after its approval. Keep in mind, however, that the process may take some time, so it is imperative that you initiate the application process as soon as possible. Wishing you all the best with your new job!

Upgrading to Premium Processing During the Extension Process

In case you find yourself in a situation where you require your new H-1B approval notice urgently, there is a way to expedite the process. You can upgrade your H-1B extension request from Regular Processing to Premium Processing.

Typically, your department is responsible for covering the costs associated with Premium Processing. However, if they’re unwilling to do so, you may offer to pay with a personal check. This option will come in handy if you need the approval notice for personal reasons such as travel or obtaining/renewing your driver’s license. For further assistance or clarification, please don’t hesitate to reach out to the ISSO advisor responsible for handling your H-1B.

H-1B Extension Documents

Here is the document list to be submitted by the employee for Extending/Renewing H-1B

Here is the document list to be submitted by the employer for Extending/Renewing H-1B

• Copy of job offer letter that reflects salary, job title, roles and responsibilities.
• Job description.
• Brochure or marketing material of the company.
• Copy of financial statement, business plan, or annual report of the company.
• Copy of the Articles of Incorporation.

Conclusion

It’s only a matter of celebration if your name appears in the lottery after intense struggle. Therefore, if you wish to make transitions in the form of transfers or extensions, it’s better that you consult a qualified and highly experienced immigration attorney. It’s good to care for one’s time, energy, and money.

With H1Bvisajobs.com you get access to a pool of smart and experienced H1B immigration attorneys who ease out your H1B visa renewal or extension process. Our experts (attorneys) will go to extreme levels to accomplish your task. Our clients are always our priority.

Book your consultation with us today to get best insights into H1B visa extension issue.