What is H1-B Visa?
H1-B Visa is a classification that permits foreign nationals to work in the United States of America for a temporary period. A person can hold a H1-B status for a maximum of 6 years and the person can receive extensions beyond that under certain circumstances. H1-B visas are limited, a total of 85,000 visas are available each fiscal year out of which 20,000 are restricted to individuals who have a masters degree or any higher degree from the U.S. colleges and universities. The H1-B limitation is called H1B Cap.
H1-B extension beyond the 6 year limitation
After the completion of the 6 year limitation of the H1-B visa, the individual is termed as an alien. The alien has to leave the United States for at least a year to get a new H1-B status. Under the American Competitiveness in the Twenty-First Century Act, some H1-B employees can extend beyond 6 years.
There are two scenarios under which one can extend the 6 year limitation. They are as follows:
If the H1-B holder has filed for Labor Certification application or for an I-140 petition 365 days prior to reaching the 6 year limitation provided the petition is not denied, the H1-B holder can extend his or her status on an annual basis beyond the 6 year limitation. There is no upper limit as the total years under the extension as the immigration process is on-going.
For instance, Mr. Ajay's employer has filed PERM for him one month before he finishes his 5 year anniversary of H1-B status. The PERM gets delayed due to auditing and the next month Mr. Ajay will reach the final year of the 6 year limitation of his H1-B status. Mr. Ajay's employer can apply for an extension. On the assumption that Mr. Ajay's PERM is approved before the 6th anniversary of his H1-B status, Mr. Ajay has filed for I-140 and I-485 and both the cases are pending, he will be able to extend his H1-B based on the pending cases (I-140 and I-485).
If the H1-B holder has an I-140 petition that is approved and the immigration visa number is not available due to visa number retrogression, then he or she may extend his or her status in 3 year intervals beyond the 6 year limit. There is no need for a 365 day requirement.
For instance, Dr.Mahi from India has filed for her NIW I-140 petition about 6 months before reaching her 6 year limit. Her I-140 petition is approved in 3 months. But she is not entitled to file I-485 because of immigration visa number retrogression for Indian Nationals, she is however eligible to extend her H1-B status for 3 years based on her I-140 approval.
Mr.Lee, engineer from China has 10 months left before his 6 year limitation period. He gets PERM approval within 6 months and files for I-140 petition immediately, but due to visa retrogression for the Chinese Nationals, he is not able to file his I-485. His I-140 gets approved one month before he reaches his H1-B limitation. He files for H1-B extension and receives the H1-B approval for 3 years based on the I-140 approval.
Requirements to avail the H1-B extension
To avail the extension in the above two scenarios, the H1-B holder must extend his or her H1-B with a sponsoring H1-B employer. The extension is not just limited to the H1- status with the employer that is sponsoring his or her immigration petition but his or her PERM path to green card must be continued to be sponsored by the PERM sponsoring employer. H1-B holder must come back to work for his or her PERM sponsoring employer during I-485 or after the green card is approved.
For instance, Mr. Melvin is a beneficiary of PERM case sponsored by Company A. His PERM is approved but his I-140 is pending. He gets the consent from Company A, he promises to return to Company A after getting his green card. But he wants to work for Company B for a while and he applies for a H1-B extension with one year interval based on the PERM case that is filed by Company A. Under this circumstance, Mr. Melvin can receive H1-B extension from Company B sponsorship.
If you do not get the extension, then the individual must leave U.S. for a year to qualify again for the H1-B status for the next 6 year period. The same process must be undergone to avail the H1-B status. You must secure your employment offer, submit the Form I-129 and get approval for your petition and later apply for visa with the U.S. Consulate from the country that you reside in.