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H-1B Extensions Beyond Six Years

 

Employment in H-1B status is generally limited to a six year period. Individuals in H-1B status may be eligible for employment in H-1B status beyond the general six year limitation under the following circumstances:

(1) If they have "resided and been physically present" for at least 365 days outside the U.S.

  • More details can be found here. A new six year period is available once the 365 day requirement is met.
  • An individual who did not use the entirety of the six year period prior to departing the U.S. may only use the time remaining on their six year period unless they have met the 365 day requirement.
  • Evidence of employment and/or residence for time spent outside the U.S. is required.

(2) If they have had an Employment Based Labor Certification or I-140 petition filed at least 365 days prior to the end of their sixth year in H-1B status.

  • More details can be found here at AC-21 106(a) under Pub. L. 106-313.
  • Periods of up to one year are available until the Labor Certification or I-140 is denied.
  • Once a Labor Certificiation or I-140 is approved, one year periods are available until a final decision on permanent residence is made.
  • The filing date is indicated by the priority date assigned on the I-797 Receipt Notice for the I-140 petition or the date the Labor Certification was first filed.
    • It is recommended that H-1B status holders begin the Labor Certification/Permanent Resident process no later than the middle of their fourth year in H-1B status so that this time requirement may be met.

(3) If they have an approved Employment Based I-140 and are subject to the visa availability backlog based on their country of citizenship and preference category (EB-1, EB-2) at the time the H-1B petition is filed.

  • More details can be found here at AC-21 104(c) under Pub. L. 106-313.                  
  • Three year periods are available under this provision.
  • The current visa bulletin showing which countries are subject to the visa availability backlog can be found here.
    • Countries with a C are current, and individuals with citizenship in those countries are not eligible for the three year extension under this provision.
    • Employment Based-1 includes those with petitions filed under Outstanding Professor or Researcher and Extraordinary Ability categories.
    • Employment Based-2 includes those with petitions filed under National Interest Waiver and Professionals with Advanced Degree categories.

If the request for time beyond the six year limitation is in the form of an extension, the petition for extension must still be filed prior to the expiration of the current H-1B approval period.