Extending H1B Beyond 6 Years in One-Year Increments

Generally, a foreign national is limited to a maximum duration of stay of six years in H1B status, but the law provides several exemptions to this limit. Most common exemptions include extensions in three and one-year increments. This article focuses on extensions in one-year increments if an employment-based permanent residence (“green card”) case was filed at least 365 days before the end of the sixth year in H1B status. For most green card cases, this process begins with the filing of the PERM labor certification, while for cases that do not require a labor certification, the I-140 immigrant petition serves as the first stage.

A challenge can arise, however, when a foreign national’s priority date has been current for more than a year, yet they have not filed for adjustment of status (Form I-485) or applied for an immigrant visa. In such cases, the foreign national is not eligible for the one-year extension unless it can be demonstrated that the failure to file was due to circumstances beyond their control. Despite this hurdle, there are strategies available to seek an extension in this situation. Understanding these strategies is crucial for foreign nationals pursuing employment in the United States while seeking lawful permanent resident status.

Examples of Circumstances Beyond the Foreign National’s Control

When seeking an H1B extension under this exemption, it is important to provide compelling evidence of why the adjustment of status or visa application was not filed within the required timeframe. Some examples of circumstances that the USCIS may consider valid include:

• Job Loss Due to COVID-19 or Economic Downturns: If the foreign national’s I-140 employment ended during the pandemic or other economic disruptions, and they could not proceed with the green card process.
• Employer’s Inability to Proceed with Green Card Sponsorship: Situations where the employer’s business faced financial hardship, closed operations, or withdrew support for the green card process.
• Health or Family Emergencies: Personal circumstances, such as severe illness or family crises, which prevented timely filing.

In contrast, voluntarily leaving a job and failing to timely initiate the green card process with a new employer may not be sufficient to meet the threshold for circumstances beyond one’s control.

Demonstrating Steps Toward Green Card Sponsorship

To strengthen the case for an H1B extension, foreign nationals should also demonstrate that they are actively pursuing their green card with a new employer. This likely will involve showing evidence that the new employer has initiated the PERM labor certification process, even if it is still in the early stages due to processing delays for prevailing wage determinations at the U.S. Department of Labor. Although delays in the PERM process may limit the ability of the foreign national to rely on the new employer’s PERM for an extension of the six-year limit, it is important to present evidence of ongoing efforts and intent to file the green card.

Conclusion

Extending H1B status beyond the six-year limit when the form I-485 or application for an immigrant visa has not been filed within one year of visa availability requires careful documentation and planning. Successfully demonstrating that the failure to file was due to circumstances beyond the foreign national’s control, coupled with evidence of active green card sponsorship efforts, is key to increasing one’s chance of approval.

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