H1B visa expires after a predetermined amount of time and does not let its possessor live permanently in the United States as an immigrant. When an H-1B worker’s status expires, they have three options: leave the country, get an extension, or seek another immigration status. The employee loses their legal status in the country and is subject to removal (deportation) if they merely remain in the country after their H-1B status expires.
A foreign worker with an H-1B visa is only permitted to stay in the country for a maximum of six years (with extensions under specific conditions, which are covered below). The H-1B visa and status can be renewed for an additional three years after the first three years have passed. The foreign worker must leave the country after their permitted stay expires or apply for another immigration status, such as an O-1 “extraordinary ability” worker or F-1 student. A fresh six-year clock starts once you’ve returned from your entire year abroad.
This article aims to shed light on the length of time an H-1B visa remains valid, explore extensions and exceptions, and touch upon related aspects such as H-4 EAD job restrictions, the six-year limit, and deportation concerns.
Table of contents
H1B Visa How long does it last?
When initially granted, an H-1B visa typically has a validity period of three years. During this time, the visa holder can work for the sponsoring employer in the designated specialty occupation. However, it is important to note that the H-1B visa’s duration can be extended beyond the initial three-year period under specific circumstances.
Extensions Beyond the Initial Three-Year Period:
Maximum Six-Year Limit:
Under normal circumstances, an H-1B visa holder can extend their stay in the United States for up to six years. This includes the initial three-year period and an additional three-year extension.
Extensions for Approved Employment-Based Green Card Applicants:
If an individual has an approved employment-based immigrant petition (Form I-140) or a labor certification filed before completing five years on H-1B status, they may be eligible for one-year extensions until the green card process concludes.
Extensions Based on Pending Employment-Based Green Card Applications:
H-1B visa holders with pending employment-based green card applications may be eligible for extensions beyond the six-year limit. These extensions fall under the “H-1B cap exemption” or “AC21 provisions,” allowing continued employment in the U.S. while the green card application is in progress.
Per-Country Limits and H-1B Extensions:
Individuals facing delays in obtaining green cards due to per-country limits may be eligible for H-1B extensions beyond the usual six-year maximum.
Additional Considerations :
H-4 EAD Job Restrictions:
Dependent spouses on H-4 visas who have obtained an Employment Authorization Document (EAD) face certain job restrictions. The H-4 EAD allows them to work, but it comes with limitations and may not be available in all cases.
H1B Deportation on H1B Visa Expiry:
H-1B visa holders must comply with the terms and conditions of their visa. Violating these conditions, such as engaging in unauthorized employment or criminal activities, can lead to deportation proceedings.
H1B Six-Year Limit Reset:
In specific circumstances, individuals who have reached the six-year limit on their H-1B visa may be eligible for a reset if they spend one year outside the United States. This allows them to start a new six-year period upon returning.
What Time Counts Toward the H-1B Six-Year Maximum?
It’s crucial to know precisely which time periods contribute towards the six-year maximum when figuring out how much time an H-1B worker has left.
First off, only the period of time the employee is in the country with an H-1B visa counts towards the six-year limit. Even if someone leaves the nation and comes back with an H-1B visa, any time spent abroad does not count.
Let’s take the case of a Russian national who holds an H-1B visa with a validity period of October 1, 2018, through September 30, 2021. The employee travels to Russia to see family from January 1 until April 1. The six-year maximum does not apply to the three months spent abroad.
Because H-1B employees are permitted by immigration law to “recapture” any missed time in order to benefit from the entire six-year maximum, understanding this notion is crucial.
Assume that the H-1B worker from Russia has extended their status from October 1, 2021, to September 30, 2024. The H-1B visa may be extended a third time, from October 1, 2024, to December 29, 2024, because the employee in the case above can “recapture” the three lost months of H-1B time from 2016. The employee’s H-1B visa will be valid for the whole six years thanks to this third extension.
However, the six-year maximum also applies to any time a worker spends in the United States while in L-1 status, in addition to the time spent in H-1B status. Since all time spent in L-1 status is added to the H-1B six-year maximum, it’s critical to determine how long the employee was in the country in each status because some workers alternate between L-1 and H-1B status.
The L-1 visa holder is also subject to the same recapturing provisions. If you have an L-1 visa and leave the country, you can apply the time you were gone towards the remainder of your H-1B period.
Another crucial fact is that, if you obtain your own H-1B status, any time spent in the United States as the “dependent” spouse or child of a person in H or L status DOES NOT count towards the six-year restriction.
Consider a scenario where a worker is in the country on an H-1B visa and his wife is there on an H-4 visa (which is granted to spouses of H-1B employees). For four years, the couple resided in the country. If the wife agrees to switch to H-1B status after four years, she is eligible for the full six years of H-1B status. Her H-1B cap is unaffected by her stay in the H-4 status.
Exceptions to Six-Year Maximum Stay for H-1Bs
Two categories of H-1B visa holders are eligible to have their visas extended past the typical six-year limit. The American Competitiveness in the Twenty-First Century Act, sometimes known as AC21, has details about these.
First, an H-1B worker who is the beneficiary of an accepted immigrant worker petition (I-140) but who is unable to apply for a green card because of a past due “priority date” may prolong H-1B status.
Let’s imagine, for illustration’s sake, that you are a Chinese national with a granted I-140 under the EB-3 category, and your six years of H-1B status expire on March 31, 2023. The date of your priority is March 15, 2021. According to the Department of State Visa Bulletin for July 2022, the deadline for your category is March 22, 2018, beyond which time only those with priority dates previous to that date may submit applications for green cards. As a result, you are unable to submit your green card application because your priority date is not up to date. You are qualified to prolong your H-1B status in this case until your priority date becomes current.
Second, if a U.S. employer filed a Labour Certification application (a PERM or ETA 9089) or an I-140 petition on behalf of the employee before the start of the sixth year in H-1B status and the application/petition was not denied (it may have been approved or is still pending), the employee’s H-1B status may be extended.
Say, for illustration, that the sixth year of your H-1B visa expires on September 1, 2022. You are qualified to extend your H-1B status for another year if a U.S. employer submitted a PERM or I-140 on your behalf before September 1, 2021, and the application is still pending on that date.
It’s important to note that an H-1B worker may use the AC21 provisions to extend their visa an unlimited number of times. You might be in H-1B status for ten, fifteen, or twenty years while awaiting your priority date to become current because of the significant backlog in priority dates for specific categories. The only real restriction on these post-sixth-year H-1B extensions is that you must pursue the last stage of the green card application within a year of being eligible to do so once your priority date becomes current. But by that time, you’ll be well on your way to obtaining a green card, which means you won’t require H-1B status anymore.
Please be aware, nevertheless, that if a worker is a beneficiary of a family-based immigrant petition, AC21 does not permit the worker to prolong an H-1B. Only those H-1B workers who are the recipients of employment-based petitions are eligible to renew their visas under AC21.
How Long Can an H-1B Workers’ Children Stay in the United States?
Children of an H-1B visa holder must continue to be unmarried and under the age of 21 in order to qualify for an H-4 visa, in contrast to a spouse who has unlimited H-4 eligibility. Sadly, they are powerless to change their age. In other words, unless the parent is successful in getting green cards for the family first, or the youngster finds another status to switch to, such as an F-1 student, their status can expire earlier than their parents.
As a reminder, be sure to check on the family’s H-4 status to ensure that their status is still valid each time the H-1B worker’s employer renews the H-1B petition and status. An application for H-4 status must be made separately and can be submitted by the employer together with the H-1B petition.
The typical duration of an H-1B visa is three years, with the possibility of a three-year extension, resulting in a maximum stay of six years.
Extensions beyond the six-year limit can occur for individuals with approved or pending employment-based green card applications, those affected by per-country limits, or those meeting AC21 provisions.
However, it is crucial to navigate the complexities of H-1B visa extensions, H-4 EAD job restrictions, and compliance with visa requirements to ensure a successful and lawful stay in the United States. Consulting with an immigration attorney or the United States Citizenship and Immigration Services (USCIS) is advisable to address specific circumstances and concerns.