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The Detailed Handbook for H1B Visa Extension
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In this article, we have discussed the following information:

  • When to file for the H1B extension
  • H1B extension options
  • Extension for H1B dependents

Understanding the H1B Extension & its Significance

Is your H1B visa's initial three-year timeline about to expire? Do you want to continue working in the US? To do so, you should immediately apply for an H1B Extension, without which you cannot stay in the country.

An H1B visa is perhaps one of the most wanted visas issued by the United States Citizenship and Immigration Services.

According to the H1B Visa regulations, your US-based employer must file a petition to hire you as a foreign worker. To be eligible for employment with an H1B visa, you must possess a bachelor's degree or its equivalent. As an H1B holder, you must apply for an H1B extension, if you wish to stay and work in the US.

Once approved, you can extend your stay for an additional three years, during which you can also apply for a Green Card to reside permanently in the US. Often, it is necessary to hold the H1B visa beyond six years for physicians and scientists from countries with long visa queues like Mexico, India, China, and the Philippines.

The USCIS does not grant an H1B extension to everyone who applies for it. It can reject or deny an extension if the application does not fulfill the given requirements. If you do not qualify for an extension, you should leave the US for one year and re-apply for a fresh H1B visa if you wish to re-enter the country.

Please note that H1B visa renewal is not subject to the H1B visa cap, which denotes the number of H1B visas approved every year by the USCIS. The cap does not come into play because, with your H1B status, you are already counted against it.

When Should You File for an H1B Extension?

The H1B extension process is quite similar to obtaining your original H1B visa. It is best to file for an extension at least six months before the first three-year period expires. The USCIS recommends filing before 45 days of your first timeline expiry. Either way, it is safe to file well before the original visa expires.

As per the USCIS norms, your employer must file a Form I- 129 for the extension on your behalf. Apart from a long list of important supporting documents (which we have discussed later), you should submit:

  • A new Labor Condition Application or LCA from the Department of Labor (DOL)
  • New letter of appointment
  • New H forms
  • Photocopies of the H1B approval notice
  • H1B visa extension fee

The Immigration Act of 1990 allows H1B holders to extend their visas for six years. However, the DOL and USCIS regulations limit the
H1B extension timeline to no more than 36 months. Even so, the USCIS grants extension beyond six years only for the following circumstances:

  • If your employer has filed an I-140 Immigrant Petition to obtain Lawful Permanent Resident status and the I-140 has been approved.
  • If your employer has filed a PERM application with the DOL or an I-140 with the USCIS. Both applications should be pending for more than a year. Under these circumstances, the H1B extension is available only in one-year increments, which means the holder must file for an extension every year.

The 240-Day Rule

What is the 240-Day Rule? As per this Rule, you can continue working for your current employer for 240 days or eight months if your H1B extension application is pending renewal or until it is denied. Under the 240 Day Rule, if you happen to leave the US within the 240 days when your H1B extension application is pending, you must wait outside the US until you obtain the approval.

If you are in the US and your H1B extension is pending, you can continue working if you:

  • Have an H1B visa status while filing the extension petition
  • File the extension petition before the validity period expires
  • Continue working for the employer who filed the extension on your behalf

Supporting Document Checklist for H1B Extension

As earlier mentioned, there's a list of supporting documents you and your employer should file for an H1B extension. Your employer must submit:

  • Letter of employment mentioning the remuneration, job title, and duties with the employer's and employee's signatures
  • Company brochure or marketing materials
  • Copy of Articles of Incorporation
  • Copies of the most recent Financial Statements, Business Plans, and Annual Reports
  • Detailed job profile or description

As the employee and H1B holder, you must submit:

  • Previous US visas, if any
  • Certificate of Experience and letters of recommendation from ex-employers
  • Diploma Certificates and transcripts
  • Academic Evaluation of Foreign Degree
  • Form I-94 Arrival or Departure forms with a departure date that has not expired
  • Your resume
  • Passport copy with original H1B visa, if any
  • Form I-797 approval notice issued by USCIS

To demonstrate evidence of employment, you must submit:

  • Three previous paychecks
  • Letter from your employer or leave of absence letter

H1B Visa Extension Options: 4 Ways to Prolong your H1B Status

According to the USCIS norms, there are four different ways to apply for an H1B extension if you wish to extend your stay in the US as an H1B holder. They are:

1. 1-year H1B Extension

The 1-year extension is for H1B holders who wish to extend their H1B status beyond six years. The extension could be done in one-year intervals if the PERM petition or I-140 was filed 365 days before the 6-year expiration date.

2. 3-year H1B extension

You can apply for a 3-year H1B extension status if:

  • You have an approved I-140 petition for the EB 1,2 and 3 employment green card classifications.
  • Your Immigrant visa number is unavailable.

3. Recapture Time

"Recapturing time" is one way to get an H1B extension based on the time you travel abroad as an H1B holder. The USCIS regulations allow you to ask for an H1B extension if you have traveled to other countries during your visa validity.

4. Extension after six years

Although the maximum allowable period for your H1B visa is six years, you can apply for an extension beyond these six years, if:

  • Your employer sponsors your green card.
  • You fulfill certain milestones before your 6-year period expires.

You can extend your H1B visa unlimited times until your green card is approved or denied.

H1B Visa Extension Denial: Why it Happens & What are Your Options?

Sometimes, the USCIS may turn down your H1B extension after processing your documents if:

  • All the required documents and supporting evidence are not submitted
  • You resign from your sponsoring employer to take up a specialty occupation
  • There are questions about your employer-employee relationship
  • There are any discrepancies in the visa status, such as crimes, tax fraud, or working without authorization

If the USCIS rejects or denies your H1B extension, you can try the following options:

  • Identify why your extension was denied and refile your petition
  • File a legal motion with your attorney's help
  • File a petition for a different visa or a green card
  • Leave the USA

Using the H1B Extension Premium Processing

Premium Processing is an option to expedite the H1B visa extension processing time. According to the USCIS, Premium Processing expedites the processing for:

  • Form I-129
  • Form I-140
  • Nonimmigrant worker petitions
  • Immigrant petitions for foreign workers

With premium processing, applications are processed within 15 calendar days. Regular H-1B extensions take between three and twelve months to process. Premium extensions take between one and fifteen days.

How to Check for H1B Extension Status

You can log on to the following USCIS website to check for your extension petition processing time.

Also Read: H1B Transfer Vs. H1B Extension: What's the Difference?

Extension for H1B Visa Dependents or H4 Holders

Spouses or dependents of H1B visa holders have H4 visas. The H4 visa validity is dependent on the validity of the H1B visa. It is usually issued for three years. The following documents will have to be included along with Form I-539 if you are a spouse of an H1B visa holder applying for H4 visa renewal:

  • A copy of your most recent form I-94
  • A copy of your spouse's most recent I-94
  • Copies of your spouse's I-129 form, I-797 form, and the notice of approval
  • The proof of relationship between you and the primary H visa holder, for example, marriage certificate if it is your spouse etc.

If you are a dependent child applying for an extension of H4 visa, you must attach the following documents:

  • A copy of your most recent I-94
  • A copy of your parent's most recent I-94
  • Copies of your parent's I-129 and I-797 form and the notice of approval
  • The proof of relationship between you and the primary H Visa holder-- for example your birth certificate

As H4 visa holders, spouses of H1B visa holders are eligible to apply for an EAD or Employment Authorization Document to take up employment in the US. To apply for an EAD, you must apply for employment authorization using Form I- 765, and provide the relevant documents. Your dependents can work in the US when the application is complete. The H4 EAD Extension costs $ 455, and there is no Premium Processing option available at present.

Like all other immigration documents, the EAD card has an expiry date, which is printed under the section titled "Card Expires." Your dependent's H4 visa status is linked to your H1B status. In other words, your dependent H4 status will be extended only if the USCIS approves your H1B extension. If your primary H1B status is adjusted, terminated, or revoked, the same will happen to your dependent's H4 status.

To obtain H4 work authorization, you must:

  • Submit Form I-539 (Application to Extend/Change Nonimmigrant Status)
  • Package your H4 EAD Application with Supporting Documents
  • Mail your H4 EAD Application to USCIS
  • Receive your H4 EAD Receipt Notice

Automatic H4 EAD Extension

In 2021, the American Immigration Lawyers Association (AILA) filed a lawsuit against the Department of Homeland Security. The lawsuit cited the lack of automatic EAD extensions for H4 holders and other visas as unjustified. The Department settled the lawsuit, thereby granting all H4 holders the right to EAD extensions.

Therefore, the expired EAD can be extended until:

  • 180 days after the expiration date
  • Expiration of the H4 dependent's non-immigration I-94 record
  • USCIS' decision made on the EAD extension application

Be Better Informed with TechFetch H1B

The H1B Extension process is quite easy. However, the details can be overwhelming and confusing for first-timers. Visit TechFetch H1B to get more information about H1B extension rather than relying on assumptions.

**Disclaimer: All H1B processes are subject to change. Kindly refer to the USCIS official website for the latest updates.

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Article by Techfetch H1B team

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