The H-1B visa program is a fantastic way for companies in the U.S. to fill their staffing needs with highly trained foreign workers when they cannot do so from the U.S. labor pool. To qualify for an H-1B worker, the offered job must be in a “specialty occupation,” which the immigration law of the United States defines as a job that “requires the application of a body of highly specialized knowledge and the attainment of at least a bachelor’s degree or its equivalent.” It is this specialization that sets H-1B apart from other work-based, nonimmigrant visa categories.
We have written previously about the details of the H-1B visa: What is it? Who qualifies for it? What is the process of applying for and obtaining it? How many are awarded each year? How long is it valid?
It is that last question that we want to explore in a little bit more depth in this article. The answer is not quite as straightforward as it may seem at first glance.
How Long is an H-1B Valid?
As a nonimmigrant visa, the H-1B does not give the foreign employee( also known as “the beneficiary”) the right to live and work in the U.S. indefinitely. The maximum validity of an H-1B visa is six years. Usually, an employer will ask for H-1B status in 3 year increments. But if an employer believes it does not have enough work for the 3 year period, the Labor Condition Application or the I-129 petition of the potential U.S. employer (also called “the petitioner”) may only be able to request H-1B status in 1 year increments. offers an employment term that is shorter than three years. In that case, the visa will be for a shorter time. However, most employers apply for the full three years.
Once the H-1B visa has run its course, the beneficiary must either apply for an extension, change their visa status, or leave the country. Failure to follow one of these paths will cause them to be in the U.S. illegally. This could result in the foreign national accruing unlawful presence and if he/she/they come to the attention of U.S. Immigration and Customs Enforcement (ICE) remoal proceedings (which used to be called “deportation”). If that happens, they will not be able to receive another U.S. visa for a very long time.
Option 1: Extend
An H-1B visa may be extended to a maximum of six a year period unless certain conditions are met.
The process of extending an H-1B looks much like the process to obtain the first visa: The employer must file a new Labor Condition Application, a new Form I-129 (Petition for Nonimmigrant Worker), and pay all the filing fees (currently $460). Thankfully, the cap limit for new H-1B visas does not apply to extensions, so these new petitions are not subject to the uncertainties of the lottery system.
An employer is allowed to request the extension within the six month period before the current visa is set to expire. If an employer does not also file Form I-907, Request for Premium Processing Service, which must be accompanied by an additional $2,500 filing fee, it can take several months for USCIS to process the petition.
However, as long as the U.S. Citizenship and Immigration Services (USCIS) receives the petition before the expiration date of the current H-1B, the employee may continue working for up to 240 days after its expiry but not engage in international travel. Hopefully, before the 240 days, USCIS will issue a decision.
It is important to note that only time actually spent in the U.S. counts against the six-year maximum validity of an H-1B visa. Depending on where the foreign national is from, the H-1B may be a multi-entry visa, so the beneficiary is allowed to travel outside the U.S. as necessary for work or vacation. If during their employment period, they leave the country for any significant time, it is possible for them to apply for a third extension to “recapture” that time.
So, for instance, suppose the employer allows the employee to spend one month per year with their family back in their homeland. Over six years, that accumulates to six months of “unused” time. When they reach the end of their six years, their employer may petition for a third extension to recapture these six months.
Option 2: Adjustment of Status (because of pending green card case)
Although an H-1B visa is a nonimmigrant visa, its provisions allow the petitioner to sponsor a beneficiary to hopefully apply for lawful permanent residence usually through the PERM labor certification application process. Sometimes, under certain conditions, an employer may sponsor the employee directly through the I-140 immigrant visa petition. If their attempt to obtain a green card is based on their employment, the “American Competitiveness in the 21st Century Act” (“AC21”) provides two similar but slightly different scenarios whereby their H-1B status can be extended even beyond six years.
In the first scenario, their employer has filed either ETA Form 9089 (Application for Permanent Employment Certification), or Form I-140 (Immigrant Petition for Alien Workers), on their behalf. The former must be approved by the U.S. Department of Labor before it is included with the latter, which is submitted to USCIS. If those forms were filed before the start of their final (sixth) year as an H-1B worker and has been pending for more than one year at the time the status expires, then they may receive extensions of their H-1B benefits, in one-year increments, for as long as those other petitions are pending.
In the second scenario, their employer has filed the Form I-140 petition on their behalf, and it has been approved by USCIS. However, they may or may not yet be eligible to submit their Form I-485 (Application to Register Permanent Residence or Adjust Status) – their actual green card application – simply because the USCIS has a backlog of applications. To help with this backlog, USCIS has established a “priority date” system, which functions as a place-holder in the processing line. The date that the Form I-140 is filed is called its “priority date.” Only when that “priority date” is “current” under the Department of State’s Visa Bulletin, which is updated monthly, will they permit the Form I-485 to be filed.
This waiting period can potentially take a very long time depending on the beneficiary’s country of birth. However, in this scenario, the beneficiary may continue living and working under the provisions of their H-1B indefinitely until their “priority date” is reached.
To sum it up, then: An H-1B visa is valid for a maximum of three years initially. It can be extended one time for an additional three years, for a total of six years. If, within that time, paperwork is filed on their behalf to begin pursuing an employment-based immigration visa, then the beneficiary may remain in the U.S. and work under the provisions of their H-1B visa while they await word on the outcome of that process. This office has seen beneficiary’s living and working in the U.S. in H-1B status for more than 10+ years.
Experienced lawyers for your H-1B journey
At Levin and Pangilinan PC, we have the necessary expertise to guide you through your entire H-1B journey. We can help you prepare your paperwork, collect all your supporting documents, and, most importantly, make sure that everything is filed on time. We can never guarantee a particular outcome, but we can guarantee that your application will have the best possible chance at success. Please reach out to us today. We’re here to help.
