Since you first came to the United States six years ago on an H-1B visa, you have built a new life, survived navigating through a different culture, contributed to your career, and made new friends. Fast-forward to the present, and now your time in the United States is coming to an end because you can no longer extend your current visa.
Before you start packing boxes to move back to your home country, let’s look into some available options that will allow you to extend your stay past the six-year H-1B visa limit.
Four ways to extend your stay
Depending on your situation, there are a few circumstances that can extend your H-1B status beyond six years. Such as:
- You have an approved I-140 petition
- You filed a PERM petition or your I-140 petition has been filed at least 365 days before your H-1B visa expiration
- You are making up the time you’ve spent outside of the country while holding an H-1B
Let’s go into more detail on what each of these means for you and any additional options you’ll want to consider.
1. Apply for a new H-1B
Your current employer or a new company can sponsor you for a new H-1B after your current one expires. There is a catch though; you’ll have to leave the country for at least one year and start the H-1B visa process all over again. This is not a continuation of your current H-1B, but an entirely new visa. Meaning, you’ll have to go through the process of being interviewed by a consulate in your home country, paying the associated fees, and submitting to a biometrics test.
It’s important to note that any time you spend in the United States in a new visa category after your H-1B expiration does not count towards the one-year hiatus to apply for a new H-1B visa. So if you adjust your visa status to a different category, you can’t live in the US in that new category for a year and then change your status to an H-1B visa. To be eligible for a new H-1B after you reached the limit on your current H-1B, you must remain outside of the United States during your one-year hiatus.
2. Take advantage of the time you were out of the US
Any time that you were outside of the country during your six years in the United States, you can reclaim after your expiration. For example, if you left the country for three months while on an H-1B visa after your six-year limit is up, you can stay an additional three months to make up the time you spent outside of the country.
3. Change your visa status
If your spouse is in active H-1B or L-1 status or has an approved I-140, you can change your status to an H-4 or L-2. Keep in mind, if you change to a dependent state, you are no longer eligible to work in the United States. You could also consider switching to a student visa and going back to college to pursue a graduate degree. Advancing your education can help open doors to new career opportunities and grow your skillset to add value for any potential new employers. You also have the added benefit of converting back to an H-1B after you complete your degree program without having to go through the lottery process again.
To apply for a change of status from H-1B to F-1, you’ll need proof of admission and a 1-20 from a Student and Exchange Visitor Program (SEVP) certified school. Then you can apply for a change of status with USCIS. You can start attending the classes while your change to F-1 is pending, but your H-1B status must be valid and remain so at least 30 days before the start date of the semester. If your H-1B visa expires before your Change of Status (COS) petition is approved, you will need to apply for another COS petition to cover the gap between your H-1B expiration and the date your classes begin. Be sure to consult a reputable immigration attorney to help ensure a smooth transition from one visa to another.
4. Apply for permanent residency
Consider taking your change of status a step further and apply for permanent residency in the United States. Becoming a citizen provides many opportunities to make your life in the United States more fulfilling. Permanent residents can vote, apply for a home mortgage, receive social security benefits, and sponsor visas for immediate relatives.
When you apply for a green card, the pending approval is a status in itself. Meaning, the act of filing the I-485 application for permanent residency provides you lawful status while you are waiting for a decision. If your H-1B visa expires while a change of your status is pending, you are still a legal resident of the United States. However, you must be in valid H-1B standing at the time of your filing, and it must not expire before you receive notification that your application has been received.
The American Competitiveness in the Twenty First Century Act (AC21)
The American Competitiveness in the Twenty First Century Act (AC21) sets the rules that allow an H-1B visa holder to extend their stay after six years if they are a beneficiary of an approved I-140 or filed for their PERM or I-140 at least 365 days before the expiration of your H-1B visa. This act was passed by the US government in 2000 and was intended to increase the number of visas available while also making it easier for H-1B visa workers to switch jobs.
With AC21, eligible H-1B workers can extend their stay beyond the six-year limit without having to leave the United States first. This rule also increased the efficiency of transferring an H-1B from one job to another without having to count towards the annual visa cap number. Now, an H-1B worker could file a petition to port their H-1B visa to a new employer and start working up to 240 days before the request is approved.
According to Wikipedia, “This act recognized the fact that the H-1B status was often used by workers eligible for an employment-based category but who had not yet received it either because their Form I-140 petition was stuck, or because they were waiting for their Priority Date to become current, or because their Form I-485 application for Adjustment of Status was taking a long time. To accommodate this reality, it provided for people to extend their H-1B status (without having the extensions count toward limits).”
Benefits of Priority Date delays
Workers from countries such as India and China often experience longer delays in their green card process times than others because their priority dates are severely backlogged. This backlog is a result of the limited number of employment-based green cards given out per year and per country. If more people from certain countries apply, the number of applicants will exceed the number of available green cards, and they will need to wait until more are available. How long you wait for permanent residency depends on your priority dates, preference category, and your country of origin.
Priority dates are assigned based on when your employer first filed the PERM or I-140 application. A green card becomes available to you when your priority date is earlier than the “cut-off” date that the US Department of State imposes when the demand for visas is more than the supply. You can view your priority date in the Visa Bulletin.
Because of backlogs, you might have an approved I-140 petition but are not able to file your green card application for some time. To account for this, USCIS allows you unlimited extensions to your H-1B visa in one-year increments past the six-year limitation because your priority date is not current. However, your extension may be denied if your labor certification application, pending I-140, or adjustment of status is denied or if your approved labor certification has been revoked.
Before you consider any of the options to extend your stay in the United States, consult an immigration attorney. Laws often change that can affect what options are available to you. A well-informed attorney can help ensure that you meet any requirements necessary to extend your stay and can provide you with new alternatives to help simplify the process.
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