Answers to frequently asked questions about the H-1B extension process
In the U.S., most H-1B visas that are issued have an initial validity of three years and a max validity of six years. However, once they have been hired and find employment in the country, many H-1B visa recipients want to stay longer than the initial three-year period or the six-year maximum. Foreign nationals can apply for an H-1B extension when their visa's expiration date approaches. However, they must meet certain requirements to secure a longer visa extension.
What are the requirements for an H-1B extension past six years?
H-1B visa holders who have had a pending I-140 immigrant petition for over a year can extend their H-1B visa's validity past six years with subsequent validity periods issued in one-year increments. However, the extension permission only applies to individuals who have an employment-based green card in the EB-1, EB-2, or EB-3 category.
What is the H-1B extension process?
An H-1B extension resembles the initial application process. The applicant must provide new H forms, a new LCA, a new letter of employment, a photocopy of the original H-1B approval notice, required filing fees and any other supporting documentation. Only one copy of each document is needed for a complete H-1B extension application package. The extension request can be submitted up to six months before the applicant's H-1B visa expires.
The applicant's employer must file a Form I-129 on his or her behalf. The employer is also required to submit a new LCA to request an extension past the initial three-year period. Before filing a Form I-129, the employer will need to receive an approved LCA from the Department of Labor (DOL).
Applicants and employers may encounter H-1B extension processing delays and backlogs. However, filing an extension request on time automatically preserves the H-1B visa holder's legal status and allows him or her to continue working for the same sponsor up to 240 days past the original H-1B visa's expiration date.
How to check H-1B extension application status
U.S Citizenship and Immigration Services (USCIS) has a website where applicants and employers can check case processing times.
H-1B extension options
The H-1B visa can be extended for one or three years. When their original visa expires, H-1B visa holders can file for a one-year or a three-year extension. H-1B visa holders may apply for a one-year H-1B extension if their PERM petition or I-140 was filed one year before the visa's initial expiration date. A three-year H-1B extension may be requested if the applicant has an approved I-140 petition for an EB-1, EB-2, or EB-3 green card.
Applicants can also file for an extension to "recapture" time that they spent with an H-1B visa while spending time abroad. To request an extension based on time out of the country, the applicant must submit I-94 copies, the dates of departure and return to the U.S. and all relevant stamps.
H-1B extension premium processing
Premium processing is available to expedite an H-1B extension application. Premium processing, as defined by USCIS, provides expedited processing for Form I-129, Petition for Nonimmigrant Worker, and Form I-140, Immigrant Petition for Alien Worker. Premium processing reduces application processing to 15 calendar days. To apply, applicants must file an I-907 form and the processing fee in addition to the I-129 petition. If USCIS does not process the application within the premium processing timeline as stated, the applicant will receive a premium processing fee refund. The petition will be processed as a regular H-1B extension request.
What is the average H-1B extension processing time?
The H-1B extension processing time is three to 12 months for regular applications and one to 15 days for premium processing.
When to file an H-1B extension application
The H-1B extension request should be filed before the original visa expires. USCIS recommends filing an extension within 45 days of the H-1B visa's expiration. Individuals who do lose their status must show that they maintained valid nonimmigrant status; the delay was beyond their control; the delay took a reasonable amount of time; the applicant did not violate his or her status and that they are not facing deportation from the U.S. Applicants should not wait until the last minute to apply. Otherwise, they risk losing their H-1B status.
Can a dependent extend an H-4 visa?
Spouses or dependents of H-1B visa holders may apply for an H-4 visa if they want to join the primary H-1B visa holder in the U.S. The H-4 visa's status is linked to the primary H-1B visa holder's status, which means that the H-4 visa will also be granted an extension if the primary applicant's H-1B is extended. If the primary H-1B visa holder's status is adjusted or terminated, the same will happen to the H-4 visa.
What if an H-1B extension is denied?
An H-1B application is reviewed in two phases. First, the reviewing officer will determine if the applicant's petition is accurate and complete. The application will likely be rejected if it does not contain the required documents and supporting evidence for an H-1B extension.
An H-1B application can also be denied. There are several common reasons for an application's denial. If the applicant changed positions with the sponsoring employer since obtaining an H-1B, USCIS may not consider the new position a specialty occupation. The H-1B extension application may also be denied if questions arise over the employee-employer relationship. A change in the applicant's visa status, including committing crimes, avoiding taxes, or working without authorization can be grounds for the petition's denial.
What is the 240-Day Rule?
Applicants who have reached the six-year limit on their H-1B visa and have applied for an extension through an approved I-140 are still subject to the visa validation period.
H-1B applicants with a pending extension can continue to work if:
- They have a valid status while filing an extension petition
- The sponsor files the extension petition on time before the current H-1B expires
- USCIS receives the extension petition on time before the employee's status expires
- The H-1B extension applicant continues working for the employer that filed the extension
Current processing times and USCIS operating procedures are subject to COVID-19 protocols. Check with your immigration service provider for specific details on filing an H-1B extension application.
Head to Envoy's Resources Center for more articles about the different employment-based visas, as well as recent policy updates and thought leadership.
Envoy is pleased to provide you this information, which was prepared in collaboration with Sayra Gutierrez, who is a Partner at Corporate Immigration Partners, LLP (www.corporateimmigrationpartners.com), Envoy's affiliated law firm.
Originally published 23 February 2021
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.