- Hui Zeng, Esq.
I am in my 6th year of the H-1B status, what is next? Extending successfully? Yes, you can!
Abstract: The long wait in the employment-based immigration application has often led to the failure of obtaining the green card within the H-1B six-year statutory limit for applicants born in Mainland China. For H-1B workers whose employers are actively pursuing permanent employment-based immigration applications, they may be able to extend the H-1B status beyond the statutory limitation and thus lawfully remain in the United States beyond six years without leaving the country.
What requirements should the H-1B workers meet to break the H-1B six-year statutory limitation, and successfully obtain the H-1B extension? Is there a limit on how many times an applicant can apply for an H-1B extension? How long can the H-1B extension be? For those who had succeeded in applying for the H-1B six-year extension, could they job-hop during the extension period?
In this article, we will further analyze the common problems of applying for the H-1B extension beyond the statutory six-year limit so that H-1B workers can plan accordingly, and receive the H-1B extension approval letters beyond the statutory six-year limit!
The AC21 Act (The American Competitiveness in the 21st Century Act) provides H-1B workers who have already reached their six years the following two solutions to extend the status:
The H-1B worker is the beneficiary of an unexpired PERM petition or I-140 petition (if a labor certification is not required) that was filed over 365 days ago before the filing of the H-1B extension;
The H-1B worker is the beneficiary of an approved I-140 petition, the priority date of which is not current.
For information regarding PERM, I-140, and priority date, please click to read: “How to obtain EB-2/EB-3 business immigration green card? Three important must-know steps!”
In the following, we are going to use real case examples to help you understand in detail the AC 21 Act and debunk all misconceptions so you can plan properly; break through the six-year status barrier, and successfully obtain the H-1B extension.
I. Apply for the H-1B extension based on an unexpired PERM application that was filed 365 days: a one-year extension
Will works in company A and his H-1B status would reach its six-year limit on November 20, 2019. Company A had already submitted a PERM application on behalf of Will on October 20, 2018, which was being audited by the DOL.
If the PERM application submitted by company A for will had not been approved until November 20, 2019 (six-year limit), did Will need to leave the country after November 20, 2019? Could Will apply for an H-1B extension based on the pending PERM application? In this case, how many years could be granted for the H-1B extension?
Company A could apply for an H-1B extension for Will based on a pending PERM application, within six months before Will’s H-1B status reached the six years, for example, May 20, 2019, in this case, and the H-1B extension period could be applied for was 1 year. Under this circumstance, even though the H-1B extension application submitted by company A for Will had not yet been approved by November 20, 2019, Will did not have to leave the country after November 20, 2019. Based on company A’s prompt submission of the H-1B extension petition, Will could still work legally at company A for a maximum of 240 days after the expiration of his H-1B six-year period.
We hereby remind all the H-1B workers: to meet the one-year extension requirement, the PERM application needs to be submitted 365 days ago before applying for the H-1B extension, and the PERM application should be unexpired when we file the H-1B extension. As we know that if the employer did not submit the I-140 petition within 180 days after the PERM is approved, the PERM will lose its legal effect. That is, in a case where the PERM application has already been approved, we should ensure that when we file the H-1B extension, the approved PERM should still be within the 180-day I-140 filing timeline, or the employer has already timely filed the I-140 within 180 days based on the approved PERM.
Example: If Will’s PERM petition had been successfully approved on March 18, 2019, within 180 days after the approval which would be September 14, 2019, and in which the I-140 petition was not submitted before then, the approved PERM would lose its effect. Company A couldn’t submit an H-1B extension based on the fact that the PERM was submitted 365 days ago.
If Will’s PERM petition had been approved on June 20, 2019, even if company A had not submitted the I-140 petition when submitting the H-1B extension before November 20, 2019, Will could still obtain the one-year extension based on the still unexpired PERM petition submitted 365 days ago.
II. Apply for extension based on the approved I-140: a 3-year extension
In the above example, if Will’s I-140 had already been approved while company A was submitting the H-1B extension, how many years could we apply for the extension? At this time, must the PERM submission time meet the 365-day rule? If the H-1B extension was successfully approved and the expiration of the extension period was at bay, could company A submit another H-1B extension for Will based on the approved I-140?
According to the AC21 Act, as long as the Priority Date has not yet reached current, H-1B workers can obtain 3-year H-1B based on the approved I-140, regardless of whether the PERM was submitted 365 days ago.
In this case, before Will’s priority date becomes current, company A could submit the H-1B extension petition for Will based on an approved I-140, regardless of whether if PERM submitted before or after November 20, 2018. One extension period is effective for 3 years.
The H-1B extension beyond six years and employment-based immigration are closely connected. We hereby remind all the H-1B workers to start career planning and green card application early, to smoothly transition from H-1B to the green card holder, and minimize the adverse impact of status problems on your career. We wish you all success in your H-1B extension applications and quickly obtain your green cards!
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Attorney Hui Zeng is a senior partner of Zeng Law Group, PLLC in New York. Attorney Zeng was named as the annual Rising Star for three consecutive years in 2017, 2018, and 2019 by Super Lawyers magazine of Reuters. Only about 2.5% of practicing lawyers in the U.S received this honor. Attorney Zeng was also selected as 2018 Leading Women Lawyers in NYC by Crain's New York magazine.
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