H-1B Visa Extension
The increasingly-popular H-1B visa provides many advantages to those who hold it. Considering the long process involved with finding an employer, being selected in the lottery, and then being approved, the H-1B visa is very valuable. For that reason, it is understandable that many people would want to look into an H-1B visa extension or renewal as they find new employment, work toward their green cards, or simply wish to continue working and living in the United States.
Under normal circumstances, a foreign national is initially granted a period of stay of 3 years in H-1B status. When you near the end of that period, you will be able to apply for an H-1B visa extension up to a total of 6 years. An employer, however, can only request a total of 3 years on any given H petition.
It is important to note that for certain H-1B1 applicants from Chile and Singapore, the visa is only valid for a one-year period of admission, which can be renewed each year.
Requirements for H-1B Visa Extension Beyond 6 years:
Certain H-1B holders who have had a Labor Certification Application (or an employment-based preference immigration petition if the foreign national has been able to bypass the labor certification stage) pending for more than 365 days may be able to extend their H-1B visa beyond the 6-year limit, in 1-year increments. This can continue until the time a final decision is reached on the pending employment-based permanent residence case.
Unfortunately, this 7th-year extension is limited to persons who are applying for their green cards through the employment-based category; it is not available to persons with pending family-based petitions.
Another provision of the current statute permits an H-1B extension beyond the 6th year if the H-1B visa holder has filed an employment-based preference petition but is unable to proceed with adjustment of status to permanent resident status because of a backlog in priority dates.
On January 17, 2017, the Federal Register implemented a final rule that heavily affected many working visas including the H-1B. In particular, it made an impact on visa holders who are attempting to apply for an H-1B extension while working toward lawful permanent resident status (green card).
When applying for an employment-based green card, your sponsoring employer must file an I-140 petition. Before the final rule, the regulations mandated that the I-140 needed to be submitted 365 days before the end of the 6-year maximum stay. Instead, the Federal Register has amended this to say that the petition must be filed at least 365 days before the beginning of your exemption.
H1B Renewal Process:
There are several ways that you can receive an H-1B extension after 3 years:
- 1 year H-1B Extension
The foreign professional may apply for an H-1B extension past 6 years in one-year intervals. This can occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.
- 3 year H-1B Extension
The foreign professional is able to apply for an H-1B visa extension status for up to 3 years if the applicant has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.
This is usually granted so that beneficiaries do not have to return home while they wait for their priority dates to become current. Because some people must wait over a decade for an EB-3 immigrant visa number to become available, this H-1B extension can be very helpful.
- “Recapture” Time
Many H-1B holders decide to travel internationally for extended periods of time. “Recapturing” that time spent abroad is one way to be granted an H-1B visa extension. The foreign professional may request an H-1B extension if he/she traveled outside the United States during the validity of the visa. The applicant is obligated to submit U.S. entry and return dates, I-94 copies, and related stamps.
Here is an example: If Sue, an H-1B worker, visits her home country of Germany for a total of two months during her stay in the U.S., she may be eligible for an H-1B extension of two months past the normal 6-year limit provided that she can give evidence of her departure.
Fortunately, you are able to use the optional premium processing service to expedite your new petition’s processing time to 15 calendar days. Once you have been counted against the cap, you are no longer bound by the lottery dates (i.e. April 1st and October 1st). This means that using premium processing for an H-1B extension may be much more beneficial to your case than it would be if you were filing in the cap, where the mandatory six-month waiting period to start work usually renders premium processing obsolete.
To take advantage of this service, you will need to file an I-907 and $1,225 fee along with your I-129 petition. If the USCIS fails to process your petition in the promised time, you will receive a refund of your premium processing fee and your petition will be processed normally.
H-1B Extension Documents
In order to apply for an H-1B visa extension or renewal, a foreign professional must provide the following extension documents:
- A valid U.S. passport with the original H1B visa,
- The I-797 approval notice issued by the USCIS
- I-94 Arrival/Departure form with a departure date that has not yet expired.
- Your resume or curriculum vitae (CV)
- Evidence of employment demonstrated by one of the following:
- 3 previous paychecks
- a leave of absence letter or;
- a letter from employer.
- University bachelor’s or advanced degree
- University transcript
- Academic evaluation
- Letters of recommendation from prior employers
Extension requests are fairly similar to the original H-1B petition package (i.e. required filing fees, new H forms, new LCA, new employer letter, photocopy of the H-1B approval notice from the original petition, as well as the other supporting documents).
However, only 1 copy of each document is required in an extension petition package. The extension request can be submitted up to 6 months before the date upon which the H-1B status is due to expire (despite the fact that the I-129 instructions indicate a 4-month time frame for this).
By law, the timely filing of an extension request automatically “locks in” the foreign national’s legal status and ability to work for the sponsoring employer for a period of 240 days beyond the date upon which the H-1B status expires.
H-1B Visa Extension Process for Spouses
Spouses of H-1B holders are eligible to extend their H-4 upon the expiration of the 6-year limit. This extension is usually granted as long as the H4 holder has not committed any crimes or violated the regulations of their visa. The extension should be filed with
However, just because the primary H-1B holder has received an extension, it does not automatically grant all attached H4 holders extensions as well. It is important to remember that H-4 recipients must file the I-539 concurrently with the original H-1B extension application along with proof of the relationship with the primary H1B holder.
H-1B Extension Fees
In order to get your H-1B visa extension, your employer will be subject to the same fees that were involved with the original visa. These include:
- The filing fee for another I-129 petition: $460
- The amended Public Law 114-113 fee (if applicable): $4,000
- The ACWIA fee: $750 or $1,500 depending on whether your employer has more or less than 25 employees.
- The Fraud Prevention and Detection Fee: $500
- Any optional fees such as
- Premium processing: $1,225
- Attorney fees: You can see our flat fees here.
It is important to remember that your employer is responsible for almost all required fees. However, the premium processing fee can be paid either by you or your employer. Speak with an immigration attorney to get a better understanding of the fees involved with getting an H-1B visa extension.
When to File an H-1B Extension
It is never a good idea to wait until your H-1B visa is about to expire to file for an extension. If you end up having to file after your visa has expired, you will run the risk of experiencing serious difficulties that could jeopardize your extension approval. If your visa has expired and you are considered “out of status”, you will need to submit evidence of all of the following:
- That you have maintained legitimate nonimmigrant status
- That the delay was necessary or outside of your control
- That the amount of time the delay took was within reason
- That you have not violated your status under the H-1B visa
- That you are not in the process of being removed from the U.S.
If you find yourself caught out of status before filing for an extension, connect immediately with an immigration attorney to see what steps you need to take next in order to increase the chances of H-1B extension approval.
H-4 Visa Extension
If you are planning on bringing a spouse or dependent with you to the U.S. while you are under an H-1B visa, you can have them apply for an H-4 visa. This secondary visa would be tied to your own visa status, meaning that if you get an H-1B extension, so will your H-4 visa spouse or dependent. On the other hand, if your status is revoked or otherwise terminated, so is theirs.
Additionally, if the H-4 visa holder would like to work in the U.S., they will need to obtain Employment Authorization Documents (EAD). In the same way, the EAD will be valid for as long as the H-1B visa is valid and any extensions will also be applied to the EAD. However, in order for your H-4 spouse or dependent to get an EAD, you (the H-1B holder) will need to file an I-140 and have it approved by the USCIS.
What If I Get an H-1B Extension Denial?
If your extension petition is denied, you will likely have a few choices available to you.
- You can identify the issue that led to the denial of your petition and refile.
- You can file a legal motion with the help of your attorney
- You can petition for a different visa or green card
- You can leave the country
Fortunately, the USCIS will likely give you the reason for your denial, though they will also note that no appeal can be made to a third party concerning the decision.
Filing a legal motion is a delicate process that should not be done without the help of a qualified attorney. There are two types of legal motions that can be filed in the event of an H-1B extension denial.
The first is a motion to reopen your case. This is put into effect usually when some new evidence comes up that, if viewed with your case, might change the negative decision. Therefore, you are requesting the evaluating officer to reopen the case and re-examine it with this new information.
The second motion is a motion to reconsider. This is something you would use if your attorney believes that the evaluating officer was wrong in his or her decision to deny your H-1B extension. However, your attorney must be able to present an argument that the extension should be approved from a strictly legal perspective.
If your H-1B extension is denied, then you may want to consider applying for a different visa or green card that matches your qualification. For nonimmigrant visas, you have:
- TN visas for professional workers from Canada and Mexico
- J-1 visas for exchange visitors such as professors and medical students
- O-1 visas for those with extraordinary ability
- L-1 visas for the specialized employees, managers, and executives of multinational companies.
If you are interested in making your stay more permanent, you can consider applying for a green card such as the:
- EB-1 green card for those with extraordinary achievements, outstanding researchers and professors, as well as the managers and executives of multinational companies.
- EB-2 for those with exceptional ability, those that have an advanced degree, and those that qualify for a National Interest Waiver.
- EB-3 for professional workers (those with bachelor’s degrees), skilled workers (those with more than two years of relevant work experience), and other workers (those with fewer than two years of experience).
How Our Immigration Lawyers Can Help
Obtaining an H-1B visa is no small feat, especially when you consider the odds of being selected in the lottery. That’s why you want to treat your hard-earned visa with care. Making any changes such as transfers or extensions is best done with the help of a qualified immigration attorney to help you avoid unnecessary losses in time, effort, and money.
Our H-1B attorneys are highly skilled in assisting clients with required documentation for H-1B visa renewals and extensions. We work with you every step of the way to make sure that everything is done right the first time and we will fight for you through any obstacle that may arise.
Our immigration lawyers specialize in employment-based immigration matters and can help you determine if you meet the qualifications necessary for the specific H-1B extension. To contact us, simply fill out our contact form to schedule your consultation.