Filing Labor Certification During Sixth Year of H1B

Attorneys at the Murthy Law Firm are often asked whether it is too late for an employer to file a PERM labor certification (PERM or LC). The question generally comes from individuals who are approaching or are already in the sixth year of H1B status. It is often assumed that it is impossible to file an LC if one is in the sixth year of H1B. This is not correct. The LC can be filed at any time. Questions arise as to possible options for one nearing the end of six years in H1B status in the United States.

Rule for H1B Extensions Beyond Six Years

The standard allowable time in the United States in H1B status is six years. In order for one to be eligible to extend H1B status beyond six years, it is necessary to qualify under either of two possible rules. These rules are part of the American Competitiveness in the Twenty First Century Act (AC21). The requirements are that (a) the foreign national must be the beneficiary of an LC filing made 365 days prior (or I-140 in those cases that do not need the LC filing); or (b) the LC and I-140 must be approved, with no visa number (based on the priority date) available.

LC or I-140 Filed Before End of Five Years in H1B Status

The first rule, known as the 365-day rule, is predictable. Generally, it is recommended that the employer file the LC application at least 365 days before the end of the six years of H1B status. This is still sound advice. It should not be inferred, however, that all is lost if the LC cannot be filed 365 days before the end of the sixth year in H1B status.

LCs May Be Filed Anytime

As explained, the 365-day rule relates to the ability to extend the H1B status. It does not place a limit on the ability to obtain approval of an LC. LC decisions do not depend upon the immigration status of the foreign national beneficiary. The outcome of an LC filing is not connected to the time the beneficiary has remaining in H1B status. The permanent residency, or green card, is related to a future job offer concept, unlike the ability to obtain H1B extensions to live and work legally in the United States.

Options if LC Filed in Sixth Year

If an LC is filed once the sixth year of H1B status has begun, there are a number of possible options and outcomes. Some of these possibilities are described below, based upon the following example:

Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends February 1, 2018. His company is going to file his LC on June 1, 2017.

In this example, Mr. Kumar’s six years will end before his LC will have been pending for at least 365 days. The possibilities are as follows.

Option 1, Best Possibility: Fast Approval

If the LC is approved quickly, then Mr. Kumar’s employer could file an I-140 petition and request premium processing of that petition. If the I-140 is approved before the end of Mr. Kumar’s six years, he then would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year H1B extensions.

At the time of this writing, Option 1 is realistic in many cases. Processing times at the U.S. Department of Labor (DOL) show that LC processing has become much faster than in the recent past. This allows such a case to move forward for filing and, hopefully, approval of the I-140 petition.

A variation of Option 1 would be for the LC and I-140 petition to be approved shortly after the end of Mr. Kumar’s six years. In this event, he would be able to get three additional years of H1B time if he left the United States at the end of his six years or changed to another nonimmigrant status, such as H-4, in the interim and remained in the U.S. It is safest to discuss possibilities with a knowledgeable lawyer to ensure that there is a clear understanding of the options and risks. The U.S. employer would likely have to be involved in these discussions as well.

Option 2: Recapture of H1B Time

The six-year limit for H1B status is only counted against time spent in the United States. So, if an individual has spent time abroad during the six-year period, s/he can recapture that time abroad.

In the example, if Mr. Kumar spent enough time abroad, he could qualify for an extension of his H1B on that basis. This may be enough to bridge the gap between his six-year expiration and the 365-day point.

Option 3: Leave the U.S. and Return After the 365-Day Point

In the example, there is a gap between the expiration of the six years in H1B status (February 1, 2018) and the 365-day point (June 1, 2018). One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one-year H1B after the LC reaches the 365-day point. Thus, Mr. Kumar would have to spend February 1, 2018 through June 1, 2018 outside of the U.S., before he would be eligible to return in H1B status. He would be eligible for further H1B extensions, as long as his green card case remains in process. This is often a workable option for positions that can be performed remotely, or for employers with offices outside the United States.

This option can be combined with the recapture provisions to minimize the time spent abroad. Using this option does not make the individual subject to the H1B cap or lottery.

Option 4: Dependent Status

Some of those reaching the end of their six years in H1B status may be able to change to dependent statuses through their respective spouses. The time in H1B status does not limit eligibility for time in H-4 status. If Mr. Kumar’s spouse is in H1B status, and has extended beyond the standard 6-year max pursuant to AC21, or has an approved I-140, this would make Mr. Kumar eligible to apply for a change to H-4 status and an employment authorization document (EAD). Or, if Mr. Kumar happens to be married to an L-1 principal, then a change to L-2 status may be a good option, as an L-2 spouse is eligible to apply for an EAD, as well.

In the event that Mr. Kumar’s spouse is the beneficiary of a green card case with a current priority date, this may provide the option to file an application for adjustment of status (I-485). The I-485 filing would permit Mr. Kumar to obtain an EAD, although it does not provide a way to extend H1B status beyond the standard 6-year limit.

Conclusion

The scenarios described here should provide some clarity on this matter and who may qualify. As each case is different, it is important to analyze your particular situation carefully and discuss the available options with a knowledgeable and experienced immigration lawyer.

At MurthyDotCom we have published articles on immigration issues since 1994. Over time, earlier articles become outdated due to changes in the law, regulations, or the political or economic climate. This article, originally published in 2011, has been updated for the benefit of our readers.

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