H1B Visa Extensions and Renewals for Employers

The initial term for an H1B Visa is up to 3 years. After the initial 3-year term, an H1B visa may be extended or renewed for one additional 3-year term for a maximum stay of 6 years in H1B visa status. An extension of H1B visa status is obtained the same way as the initial H1B visa, by filing Form I-129 Petition for Alien Worker with USCIS.  We review the H-1B Visa extension and renewal process here. 

How long can our employee work under H1B Visa status?

Employees can work under H1B Visa status for an initial period of up to three years. This period may generally be extended for one additional three-year period, not to exceed six years. In limited situations, an extension beyond six years may be obtained under the American Competitiveness in the Twenty-First Century Act (AC21).

How do we extend our employee’s H1B visa for another three years?

You can extend the H1B visa status for your employee for another three-year term by filing a new Form I-129 Petition with USCIS seeking the extension. The extension process is the same as the process for a new H1B visa. This means you must obtain a new Labor Condition Application (LCA) covering the latest period and submit all required supporting evidence that the position and the employee meet the requirements for employment on an H1B visa. The significant difference is that once you have obtained the H1B visa allocation in the H1B visa lottery, you do not need to enter the lottery again for the same employee to extend their H1B visa. However, the same burden of proof is applied to the extension. Please do not assume you will obtain an extension because they approved the initial H1B visa petition.

What if our employee’s H1B visa status expires while the renewal or extension is pending?

Your employees can continue working while the I-129 extension request is pending with USCIS under the “240-Day Rule”. The “240-Day Rule” allows a foreign employee with a pending H1B visa renewal filed on their behalf to continue working for the current employer for up to 240 days (8 months) or until such a renewal application is denied.  When an H1B visa extension is filed promptly, the added cost of premium processing can be avoided. The employee must remain in the United States while the extension is pending. Impending travel could necessitate premium processing.

How do we extend our employee’s H1B visa beyond six years?

Generally, the maximum time an employee can stay in H1B visa status is six years. Once the six-year H1B limit is reached, the employee must live outside the United States for an uninterrupted year (365 days) before they can qualify to apply for a new six-year H1B term.  If the position is subject to the H1B cap, you must enter the H1B visa lottery again. Extensions beyond six years can be obtained in the following situations:

• Approved I-140 Petition – If you have filed an I-140 Immigrant Petition for your employee (Green card petition) and the I-140 has been approved, you can file an H1B extension beyond the six-year limit. In this case, three-year extensions can be obtained.
• Pending PERM or I-140 Petition – If you have filed a PERM application with the Department of Labor or an I-140 with USCIS and either has been pending for more than 365 days, you can also extend the H1B visa.  In these cases, a one-year extension can be obtained.

How do we recapture time on an H1B Visa?

Recapturing time on an H1B visa allows visa holders to extend their stay in the United States if they’ve spent time outside the country during their visa validity. Here’s how to recapture this time:

1. Track Your Travel: Keep detailed records of every departure from and return to the U.S. during your H1B visa period. This includes dates of travel and copies of stamps in your passport.
2. Gather Documentation: Collect boarding passes, flight tickets, and other documents proving your entry and exit dates from the U.S.
3. Calculate Unused Time: Sum up all the days you were outside the U.S. These days can be added back to extend your H1B status beyond the standard six-year limit.
4. File the Petition: With the regular H1B extension documents, submit your travel records and a letter explaining your request to recapture time.

What if we terminate an H1B Visa employee before the end of their visa?

Suppose you terminate your H1B visa employee before the end of the period you have sponsored them. In that case, you are liable for the reasonable costs of their return transportation to their home country. You are not responsible for their return transportation costs if the employee voluntarily resigns from their position.

H1B Visa Extension and Renewal Standard of Proof