Professionals: Time Limits for H-1B Visas
As a general rule, H-1B visa holders are allowed to remain in the United States in H-1B status for no more than six years. H-1B petitions are normally approved in three-year increments. An H-1B visa holder who spends more than six months per year outside the United States is exempt from the six-year limitation.
Following the six year period in H-1B status, a person must spend 365 days outside the United States before being eligible for H-1B status again. However, there are exceptions to the six year rule that allow H-1B visa holders to remain in the United States in H-1B status longer than six years.
Recapturing Time to Extend H-1B Status Beyond the Six Year Limitation
One of the strategies to extend H-1B status beyond six years is to “recapture” the time an H-1B visa holder spends outside the United States. Only time actually spent physically in the United States in H-1B status counts towards the six-year limit.
For example, if an H-1B visa holder spends a total of twelve months outside the United States during the six-year H-1B period, the person may extend H-1B status for an additional twelve months beyond the six year limit. Every day spent physically outside the United States can be recaptured to allow an H-1B visa holder to remain in the United States in H-1B status beyond the six-year limit.
The USCIS also allows recapture of time for maternity leave and extended sick leave. Vacations in the United States and weekends (inside or outside the United States) do not count.
File a Labor Certification at Least 365 Days Prior to the Six-Year Limit on H-1B Status
An additional strategy is to file a PERM Labor Certification or immigrant visa petition prior to reaching the 5th year anniversary in H-1B status. Under these circumstances, H-1B extensions may be filed until a final decision is made on the PERM labor certification application, subsequent immigrant visa petition and adjustment of status application. These H-1B extensions are granted in one year increments. However, if an immigrant visa petition is approved and the H-1B employee is not able to file an adjustment of status application to U.S. lawful permanent residence due to quota backlog, H-1B extensions may be granted in three year increments.
Real Life Application of Both Strategies Combined
Problem
On November 20, 2003 we were hired by an H-1B visa holder who wanted to extend his stay in the United States. According to our client’s latest USCIS Form I-797, Approval Notice, his six-year H-1B limit was November 10, 2004, less than 365 days away.
However, upon reviewing the client’s documents we determined the client would be eligible for recapture of H-1B time. The initial petition approval validity date was November 10, 1997. However, the client’s H-1B visa was not issued until December 17, 1997 and the client did not enter in H-1B status until December 18, 1997.
Solution
We immediately filed a traditional labor certification application before December 1, 2002. Subsequently, in the summer of 2003 we filed an H-1B extension of status requesting recapture of the time between the initial H-1B petition approval (November 10, 1997 ) and the initial entry into the United States in H-1B status (December 18, 1997). The H-1B extension was approved and the time recaptured until December 18, 2003. We later filed an H-1B extension requesting a one-year extension since the client’s labor certification was pending fore more than 365 days. The H-1B extension beyond the six-year limit was approved.
Benefit
Our client is now allowed to remain in the United States in H-1B status past the six-year limit. Due to the lengthy processing of traditional labor certifications, the client will likely be able to remain in the United States in H-1B status for several more years before the labor certification is approved.
Special Rules for L-1 Visa Holders Changing Status to H-1B
If an L-1 visa holder changes to H-1B status, any time spent in L-1 status is deducted from the total amount of time allowable in H-1B status. For example, if an L-1 visa holder has spent five years in the United States and changes to H-1B status, the individual may only remain in the United States in H-1B status for one year.
