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. In general, this time period may be extended, for one additional three-year time period not to exceed six years. In limited situations, extensions 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 new time period and submit all required supporting evidence that the position and the employee meet the requirements for employment on an H1B visa. The major 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. 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 are authorized to 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 who has a pending H1B visa renewal that was 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 in a timely manner this can avoid the added cost of premium processing. 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?
In general, the maximum time an employee is allowed to 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 would have to 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?
here is a way to recapture days in which the employee was outside the United States so as to make sure that every single day of the six years is utilized.
What if we terminate an H1B Visa employee before the end of their visa?
If you terminate your H1B visa employee before the end of the time period for which you have sponsored them, you are liable for the reasonable costs of their return transportation to their home country. You are not responsible for the costs of their return transportation if the employee voluntarily resigns from their position.
H1B Visa Extension and Renewal Standard of Proof
Do not underestimate the H1B Visa extension or renewal process. Just because USCIS approved H1B visa status for an employee in the past does not guarantee approval in the future. The same attention to detail and due diligence applied to a new H1B visa petition must also be applied to a petition for an H1B visa extension or renewal.
Additional Outside Resources
- H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models
- 8 CFR 214.2(h)
- USCIS Form I-129, Petition for a Nonimmigrant Worker
- USCIS Form I-907, Request for Premium Processing Service
We Can Help!
The immigration lawyers at Richards and Jurusik Immigration Law have more than 30+ years of H1B Visa experience helping people to live and work in the United States. Contact us today for a free assessment of your H1B Visa matters.