H-1B Visa Extension Beyond Six Years

Many companies have recently sponsored an employee on an H-1B visa. If you got in under the H-1B visa cap, good work. It is not too early to begin making long-term plans for the employee. As you do, you should be aware of some of the issues that affect the H-1B visa holder’s period of stay in the U.S. We all know that an employee can obtain an H-1B extension for up to six years then they have to return home to reset the clock. But, that’s almost never the case. In fact, most H-1B visas can be easily extended for several more years, and occasionally indefinitely.

This post provides the latest news on the maximum period of stay on an H-1B visa.

Maximum Time on H-1B is Six Years: Or Is It?

The general rule is that the maximum period of stay in H-1B visa status is six years. H1B visa holders are eligible for a total maximum stay of six years. The six-year limit includes time spent on the H1B visa with another employer. The initial H1B petition may cover a period up to three years. Extension petitions may be made for a period of three years or less, up to the six year total.

While the six years maximum is strictly enforced, most H1B visa holders find that they can spend a lot more time in the U.S. in H1B status than that. Here are the common ways:

1. H-1B Extension for Three Additional Years: If the employee has an approved Form I-140, but cannot file for adjustment of status (Form I-485 or your green card application) because of the per-country limits, the H1B visa can be extended in three year increments until the visa number becomes available to apply for the green card.
2. Extending in One Year Increments: If your company began the green card process at least 365 days prior to the day in which the six-year limit was reached, the H1B visa may be extended in one-year increments. Note that the Form I-140 does not have to be pending for 365 days, it is only required that the employer has processed the employee’s application for Permanent Employment Certification, ETA Form 9089 within 365 days of the expiration of the H1B visa. 
3. Recapture Time by Leaving the U.S.: Time spent outside the U.S. during the validity of an H1B petition may be added back, or “recaptured” to the period of stay allowed as an H1B without demonstration that the time spent outside the U.S. was meaningfully interruptive. The applicant need only demonstrate that he or she was outside the U.S. for the period of time requested. This can be established by the stamps in the employee’s passport and/or I-94, Arrival/Departure Record.
4. Leave the U.S. For One Year: If the employee leaves the US for a year, when they return, the six year period in H1B status will be reset. This, of course, is an option of last resort for most H1B visa holders.

H-1B Visa Extension Representation

Columbus, Ohio H-1B Lawyer

If you are a Human Resources professional and are sponsoring specialty occupation employees on H1B visas, contact immigration lawyer Matthew R. Porter for a consultation today. Understanding the nuances to an H-1B extension is extremely important for the success of your longer term employment plans. Porter Law Office, LLC is an AV rated boutique immigration law firm that provides cost-effective business immigration solutions.