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H1B Visa Extension Rules: How They Work
Blurred close up view of a passport with the H1B visa stamped on it

In this article, we have discussed:

  • The requirements for H1B extension
  • AC 21
  • The 240-Day Rule

H1B Visa Extension: How it Works for H1B Holders

The H1B visa is a non-immigrant visa with a six-year validity period, of which H1B holders must apply for an extension after the initial three-year validity. However, after six years, H1B holders are expected to reside outside the USA for an entire year before applying for a fresh H1B visa to return to the country.

H1B holders who have already been through the visa gauntlet are well-aware of the rigors of the H1B visa process. They have to find a US-based employer willing to sponsor their visa, submit the visa petition, wait for their luck to favour them in the H1B lottery, attend the interview, and finally obtain the visa. It is a long, nerve-wracking, and tedious process, making the H1B visa extremely valuable.

It also explains why H1B holders wisely decide to look for an H1B extension after the first three years, apply for a green card and look for options to stay in the US beyond the stipulated six years. The United States Citizenship and Immigration Services (USCIS), which oversees the H1B process, grants extensions beyond six years.

However, certain rules govern the H1B extension. If you are an H1B holder hoping to live and continue working in the USA, you must know what these rules are. Let's unpack the details.

Before you read the eligibility criteria and visa extension rules, check out the H1B Visa Extension Process.

Eligibility Criteria for H1B Visa Extension Beyond 6 Years

The original H1B visa lasts for 3 years. Most H1B holders who wish to remain in the US apply for an extension for an another three years. After these six years, some of them may leave the country for their homelands or other nations. However, if you wish to continue staying in the US after six years, you must fulfill some criteria. You must:

  • Have had your Labor Certificate Application (LCA) pending for more than 365 days. If so, you can extend your stay by one-year increments, which means you must apply for an H1B extension every year.
  • File for an employment-based preference petition, despite not being able to adjust your status to permanent resident due to a backlog of priority dates.
  • Have a Form I-140 or employment-based immigration petition filed with USCIS. You have received the approval but you are waiting for your priority date to be current.
  • Recapture time by spending time outside the US during the past six months with your valid H1B status.

Apart from these requirements, several rules govern the possibility of extending your six-year stay in the US. It is important to know each rule and how it impacts your circumstances of staying in the US.

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

The List of Rules for H1B Visa Extension

1. The Final Rule

The Federal Register published the Final Rule in January 2017 that impacted many working visas, including the H-1B. According to the rule, H1B sponsoring employers must file I-140 petitions when requesting for the employment-based green card on behalf of their foreign employees. The rule also states that:

  • I-140 must be filed at least one year before the beginning of the exemption.
  • The starting date requested for the visa extension must be given after the I-140 is pending for 365 days.

H1B Grace Period

The H1B grace period is a provision given by the Federal Register for H1B holders if you face an unexpected termination of employment. The grace period gives you time to find an alternative job. There are two types of H1B grace period.

  • 10-day grace period

The 10-day grace gives you time to sort your affairs, get them in order, and prepare to leave the US. Under this period, you shall be admitted to the US until the visa is valid. You are also granted an additional ten days before the validity period and ten days after the period ends. As a beneficiary of this 10-day grace period, you are not allowed to work except during the visa validation duration.

  • 60-day grace period

The final rule provides visa holders with a 60-day grace period following their end of the employment. During the grace period, the visa holder will not be considered "out of status" for almost two months following their unemployment. In this situation, the H1B holder has the opportunity to look for other employment or apply for a visa change of status.

3. The AC21

AC 21 stands for American Competitiveness in the Twenty-First Century Act (AC 21). Under the AC21 rule for H1B extension:

  • Foreign nationals must be the beneficiary of an LC filing made 365 days in advance.
  • LCs and I-140s must be approved, with no visa numbers available, based on the priority date.

H1B holders can use the AC21 any number of times to extend the visa. However, there are some contingencies:

  • The AC21 does not permit you to extend the H1B if you are a beneficiary of a family-based immigration petition. The AC21 only allows extension for employment-based immigration petitions. Also, your employer must file your Labor Certificate Application at least 365 days before the end of your six-year H1B status.

4. The 240-Day Rule

Your visa validity period still applies if you have reached the six-year limit on your H-1B visa and applied for an extension through an approved I-140. Therefore, the H1B 240-Day Rule allows an H-1B holder with a pending extension to continue working if:

  • Your H1B status is valid while filing an extension petition.
  • Your employer files the H1B extension well before the current H1B expires.
  • The USCIS receives your petition well before the expiry date.
  • You continue as a worker for the employer who filed the H1B extension petition on your behalf.

Why is it called the 240-Day Rule? H1B holders who fulfill the above-mentioned conditions can remain in the US under their current employers for 240 days. If the petition is approved during this time, the 240-day period ends, and the H1B extension period begins. However, in some cases, the USCIS may deny the extension petition. If this happens, the 240-day period will be immediately terminated. You will not be permitted to work anymore on US soil and will have to leave the country.

Checkout the TechFetch H1B to Understand H1B Extension Rules

Every H1B extension rule is different, and so are the criteria and conditions for each one. Understanding how you can benefit from each rule can be quite overwhelming. We urge you to check our TechFetch H1B and gain clear insights into how to implement these rules to obtain an H1B extension.

Disclaimer: All H1B visa processing details are subject to change. Please rerefer the USCIS official website for the latest updated information.

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Article by Techfetch H1B team

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