Limitations on H1B Extensions Beyond the Standard Six-Year Limit

Generally, a foreign national is limited to a maximum duration of stay of six years in H1B status. The law, however, provides a few exemptions to this limitation. Depending on the circumstances, an individual may qualify to extend status in one- or three-year increments beyond the statutory six-year limit. Understanding when an H1B worker is eligible for these extensions – and the limitations on when such extensions may be granted – can be pivotal to a foreign national’s journey toward working in the United States while applying to become a lawful permanent resident (i.e., “green card” holder) of the United States.

H1B Extensions in One-Year Increments

The general rule that allows for extensions beyond the six-year limitation in one-year increments requires the initial filing of an employment-based, permanent residence (“green card”) case at least 365 days prior to the start date requested in the H1B extension. This means that the first stage of the case must have been filed at least 365 days before the start date requested in the H1B extension which requests time beyond the standard maximum of six years. The first step in an employment-based green card case is usually the PERM labor certification. In those cases that do not require a labor certification, the I-140 immigrant petition is the first stage for eligibility of these extensions.

H1B Extensions in Three-Year Increments

The general rule that allows for H1B extensions in three-year increments beyond the statutory six-year limit is relatively straight forward. To qualify, the H1B petitioner needs to establish that the beneficiary has an approved I-140 petition, and that an immigrant visa number is not immediately available as indicated on the final action chart (i.e., Chart A) of the U.S. Department of State visa bulletin.

H1B Extensions are Not Unlimited

As previously noted, if an individual’s priority date is current, the person is not eligible for H1B extensions in three-year increments based on the approved I-140 petition. The individual may, however, be eligible to extend H1B status in one-year increments.

Still, there is an important limitation on one-year extensions. If an individual’s priority date remained current on Chart A for one continuous year, and the H1B worker failed to pursue a green card based on an approved I-140 petition (i.e., filed an I-485 adjustment of status application or applied for an immigrant visa) during that one-year period, that individual typically will no longer qualify for extensions in one-year increments.

If the one-year period is interrupted by retrogression, then the one-year period will start over once the priority date becomes current again on Chart A. Also, even if the person fails to pursue a green card during the one continuous year of the priority date being current, the H1B worker may request that the U.S. Citizenship and Immigration Services (USCIS) exercise its discretion to still grant a one-year extension based on circumstances beyond the individual’s control. For instance, if the H1B worker has moved to a different employer from the I-140 petitioner, it may be possible to argue that a one-year extension still should be granted.

Conclusion

With the unusually rapid advancement of employment-based cutoff dates in the visa bulletin over the last two years, this limitation on H1B extensions has become more of an issue, especially among Indian-born H1B workers. The limitation on H1B extensions is yet another example of why it is so important to plan and develop a long-term immigration plan.

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