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All You Need to Know About an I140 Approved H1b Extension
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In this article, you will read about:

  • Processes involved in H1B extension after I140 approval
  • Options for H1B extension
  • What H1B extension means for H4 dependents

The H1B visa is becoming an increasingly popular option for those who wish to immigrate to the US because of its many benefits. This popularity has led to a surge in H1B visa extension requests as H1B holders try to find new jobs, pursue green cards, or simply want to continue living and working in the USA.

Foreign nationals in the US under the H1B status are offered a maximum validity of six years on their H1B stay. At the end of this six-year term, the individual becomes an alien. Aliens will need to remain outside the USA for a minimum of one year to be eligible for the next H1B six-year term.

Let’s look into what the H1B extension process involves.

Basic terminology

PERM - Program Electronic Review Management System. This is a program developed by the US Department of Labor as a replacement for the program called Labor Certification Program. This was a requirement for any employer seeking to recruit foreign talent for working in the US.

Form i140 - The Immigration Petition for immigrant workers or Form i140, is the form that the US employer sends to USCIS to petition for a foreign national to come to the US on a long-term basis. It is necessary to the H1B process. In the event that the employer withdraws, i 140 approved h1b extension denied will be the only possible result.

H1B Extension - the Processes Involved

The process of H1B extension after 6 years with PERM approved is similar to the original H1B petition filing process. Requests for extension can be filed up to six months in advance of the expiry date of the H1B visa. As in the original H1B petition package, the primary applicant must file their petition with the H1B employer who acts as the sponsor.

Exemptions on H1B six-year limit

Certain categories of H1B holders are exempt from the maximum stay limit. If the sponsoring employer can prove that the H1B worker’s period of stay falls under certain categories, they can apply for an indefinite extension on the H1B status. These categories have to do with the period of work that the H1B holder is involved with. H1B can be indefinitely extended if the work is:

  • intermittent
  • seasonal
  • requires less than six months of stay in the US per year
  • part-time in nature and only involves intermittent commutes to the US

H1B Visa: Options for Extension

After the maximum six-year period of your H1B stay, there are many options for extension or change of status that you can choose from. The following are options for an H1B extension after six years:

  • The One-year H1B Extension

If the applicant can file the PERM petition or the i140 Form 365 days before the end of the maximum stay period, then the H1B applicant can file for annual extensions on the H1B period, provided their PERM or i140 request is not denied.

US Immigration laws currently make provisions under the “21st Century Department of Justice Appropriations Authorization Act” (H.R. 2215) for H-1B non-immigrants to extend H-1B one year at a time, even if their PERM is not approved but pending for one year or more than one year. The only requirement under this provision is that the application for labor certification or immigrant visa petition was filed 365 days in advance.

  • The Three-year H1B Extension

The three-year H1B extension is awarded to an applicant when the H1-B primary applicant has an approved i140 request for an employment-based green card within the EB-1, EB-2, or EB-3 classifications if their immigration visa number is unavailable due to visa number reversion. There will not be the mandated 365-day waiting period.

With this provision, beneficiaries will not have to return to their home countries while their priority dates become current.

  • The “Recapture” Time Option

Extended periods that an H1B holder spends traveling outside the U.S. can be recaptured towards the H1B extension after six years, if there is documentary proof of trips taken outside the U.S. during the validity of the visa. The applicant must submit the entry and return dates from and to the US, I-94 copies, and any related stamps.

To avail of this provision, the applicant must also submit additional documentation to account for time spent outside the US, including:

  • Plane tickets with detailed itineraries
  • Exit/Entry stamps in the passport
  • Clear record of Entry/Exit from CBP (Customs and Border Protection). These may not always be accurate and should be supplemented by other documentation.

There are several provisions in the US immigration laws that make the transition period between visa extensions and changes in status as trouble-free as possible. One of these is the American Competitiveness(AC21) Act. The AC2 enables H-1B holders who have an approved i140 to extend their H-1B status until their application for adjustment of status has been passed, in case they are unable to file Adjustment of Status because of per-country limits.

(Adjustment of Status allows eligible applicants to become lawful permanent residents of the US at the end of the maximum H1B six-year period so that they do not have to go outside the US and apply for a new immigrant visa.)

Also Read: All You Need to Know About H4 Visa Extension

H1B Extension With Approved I-140: What Does It Mean for Dependents?

The dependent of an H1B non-immigrant has a status that is always derivative of and linked to the principal H1B holder’s status.

So what happens to H4 (dependent visa) holders during H1B extensions? In the interval when an employment-based immigrant petition (I 140) has been filed and approved, but priority dates remain to be current, H-4 dependents will be able to apply for and get an EAD (Employment Authorization Document). They can thus work without restriction for any US-based employer unless the job requires a security clearance.

In the event that the primary H1B holder was to change jobs or the sponsoring employer was to revoke the i140, the EADs would remain valid until their expiration date, but they cannot be renewed unless the H1B holder can get another i140 approved by the expiry period.

H1B Extension - Can I File for PERM After My Six-year Period?

With the PERM program, the US government aimed to streamline the system that verifies that there are no qualified, willing, and able U.S. citizens who can fill a permanent position. It is, therefore, being offered to foreign talent. It is a necessary part of the H1B filing process and must be initiated by the sponsoring employer.

The day the US DOL receives the PERM application is termed the filing date. The priority date is when the employer files the corresponding i140 immigrant petition with the USCIS if the application was later certified by the US DOL. The filing date determines how soon the DHS will process the i140. Labor certification has a 180-day validity period. It must be submitted to USCIS within this period, or it will be declared expired. The sponsoring employer will have to apply for a new certificate if the expiry date has been reached, and this would need to be certified before Form i140 can be submitted.

It is sometimes assumed that filing a Labor Certification in the final year of H1B status is difficult. As a recommendation, U.S. employers should apply for PERM Certification at a minimum of 365 days before the maximum six-year period ends, but this does not stop you from filing for certification by the 6th year of your H-1B stay.

The sponsoring status of the H1B employer petitioning for immigration continues into the H1B beneficiary’s PERM path to a green card. The employer continues to be the PERM sponsoring employer.

In Conclusion

The H1B is not an easy visa pathway, neither is the process of being selected in the lottery. Navigating through the maximum stay period on the H1B visa can also be stressful to keep track of, but employers and primary applicants staying on top of the latest info can help the H1B applicants stay in the US without having to face a gap in employment.

To learn more information about H1B visa, visit TechFetch H1B website.

**Disclaimer: H1B rules and regulations keep changing from time to time. For updated information, always refer to the USCIS official website.

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Article by Techfetch H1B team

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