H1B visa status can be granted initially for up to three years, and then can be extended for another three years.
The normal maximum amount of time a foreign national can remain in the U.S. in H1B visa status is six years.
Once the six year cap is reached, the foreign national must be physically outside the U.S. for one full uninterrupted year in order to “reset” the 6 year clock.
In limited circumstances, H1B visa status can be extended beyond 6 years if:
- The foreign national is the beneficiary of an approved I-140 petition.
- The foreign national is the beneficiary of a PERM petition or I-140 petition that was filed over 365 days ago.
- The foreign national is recapturing time spent outside the US during the past 6 years in H-1B status.
1 year extension Based on Pending PERM or I-140 petition under AC-21 104(a) – Per DHS final rule, taking effect on January 17, 2017.
AC21 §106 H-1B EXTENSIONS (1 YEAR INCREMENTS)
8 CFR 214.2(h)(13)(iii)(D)(1):
- Lengthy adjudication delay exemption from 214(g)(4) of the Act. Authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based LPR status if 365 days or more have passed since the filing of a labor certification application or employment-based IV petition (I-140).
8 CFR §214.2(h)(13)(iii)(D)(2)-(3):
- Extensions are generally available until the LC expires, a final decision is made to deny the LC or IV petition, or to revoke an approved LC or IV petition, to grant or deny permanent resident status, or otherwise close an application for LC, an IV petition or application to adjust status.
- Decision to deny or revoke an LC or IV petition is not final until administrative appeals have been exhausted.
8 CFR §214.2(h)(13)(iii)(D)(4):
- Substitution of Beneficiaries.
- An alien establishing eligibility for an H-1B extension beyond 6 years must be the named beneficiary on the LC unless he or she was substituted for another alien on the LC on or before July 16, 2007.
8 CFR §214.2(h)(13)(iii)(D)(5): Advance Filing. May file for an H-1B extension beyond 6 years within 6 months of the requested start date.
- May file before 365 days have elapsed as long as the LC or IV petition is filed at least 365 days prior to the date the period of authorization will take effect.
- May request time remaining in 6 years, including recapture time, at the same time as requesting 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):
- Per country limitation exemption from section 214(g)(4) of the Act. Authorizes approval of H-1B status beyond 6 years, in 3-year increments, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is over-subscribed.
8 CFR §214.2(h)(13)(E)(2):
- Extensions may be granted until a final decision is made to revoke an approved IV, approve or deny an IV application, or approve or deny an adjustment of status application.
8 CFR §214.2(h)(13)(E)(3):
- Current H-1B status not required.
- Beneficiary need not currently be in H-1B status to qualify for an AC21 3-year H-1B extension.
8 CFR §214.2(h)(13)(E)(4):
- Subsequent petitioners may seek exemptions.
- H-1B petitioner need not be the IV petitioning employer.
8 CFR §214.2(h)(13)(E)(5):
- Advance filing.
- May file for an H-1B extension beyond 6 years within 6 months of the requested start date.
- May 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):
- Exemption eligibility. Applies only to the principal beneficiary; spouses in H-1B status cannot piggyback.
Recapturing Time Spent Outside the US
If you were outside the United States during the six years of your H-1B visa validity, you may use those days to extend your H-1B visa beyond the 6-year limit.
You are allowed to do this because once you reach the end of your 6-year period, you will not have been in H-1B status for a full six years.
You would subtract the time you spent outside the United States and recapture those days in your H-1B Renewal / Extension petition to extend your 6-year limit.
Time spent beyond the six-year limit granted under AC21 eligibility is not subject to recapture.
240 Day Rule:
This is the H1B visa 240 day rule where an individual can continue to work for the current employer for up to 240 days after the current H-1B visa expiration if he/she is waiting for the USCIS decision.
8 C.F.R. § 274a.12(b)(20)
(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to §§214.2 or 214.6 of this chapter.
These aliens 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 the authorized period of stay.
Such authorization shall be subject to any conditions and limitations noted on the initial authorization.
This rule does not allow you to stay beyond the expiration date requested in the petition for which you are awaiting the decision.
However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision.
Note: If the H1B worker needs to travel during this time, they may not be able to return until they receive the new H-1B Visa. Premium processing is a viable option in this scenario.
Also Note: The 240 day rule is not a basis to renew the H-1B. It is rule that applies only after a bona fide H-1B renewal petition has been filed.
Cap Exempt New H-1B
If you have an H-1B visa stamped in your passport and the expiration date is within the past 6 years, you are eligible for a new cap-exempt H-1B.
Your new employer would apply for the cap-exempt H-1B with USCIS and you would be able to start work after it is approved.
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