H1B EXTENSION

Workers on nonimmigrant H1B status are granted 3 years to stay in the United States, but are able to apply for an extension of up to 6 years. Once the 6 years have expired, the worker must stay outside of the country for at least one year. After that year passes, if they are petitioned for by an U.S. employer, they may qualify to obtain another H1B visa. This, again, is met with a 6 year time limit.

In order to extend the H1B status beyond the 6 year limit without leaving the country, the worker must prove to be on the way to immigrant benefits or an adjustment of status to a Green Card (permanent resident status).

Most nonimmigrant workers who achieve this do so by sponsorship from their current or potential employers through applying for employment based immigrant status. However, there is a cap at which the United States will allow H1B workers to enter the country. The U.S. Citizenship and Immigration Service (USCIS) places the cap at 65,000 workers per year.

Due to this limit, H1B workers often find that their applications are still pending as their status is approaching expiration. In many of these cases, the worker may be able to extend their stay for up to 3 years at a time, or in increments of 1 year, while their application for permanent residence remains pending.

For an H1B worker to be eligible for 3-year extensions, they must meet certain requirements. The first is that they must have an approved I140 petition for a worker immigrant visa in the EB-1, EB-2, or EB-3 categories. The EB-1 category entails a priority worker; the EB-2 a professional with an advanced degree or individual with exceptional ability; and EB-3 a skilled or professional worker.

Otherwise, they must be eligible for an adjustment of status from an H1B worker to an employment-based visa in one of these categories barring the country or worldwide cap on immigrant visas. The worker must meet these requirements or at least was eligible to apply for adjustment of status but were disposed to the cut-off date retrogression.

A worker must file their accepted I140 petition in the EB-1, EB-2, or EB-3 categories to apply for the 3-year extension. USCIS will consult the visa bulletin for when the petition was approved. If the applicant was ineligible for adjustment of status at the time the I140 was approved, he or she should receive the 3-year extension. Since the extension gets determined based on the time of the filing of the I140 petition, the worker will remain eligible for the extension even if they are also eligible to apply for permanent resident status under I551 at the time.

Interpretation of the current statutory interpretation shows that the recipient of the extension of H1B status may receive subsequent extensions until their adjustment of status has been either approved or denied.