Overview

While the H-1B quota for the fiscal year 2014 is over, it is significant to note that those foreign nationals already in the US on H-1B visas are exempt from the annual quota. Therefore, USCIS will continue to adjudicate H-1B visas so far as they relate to extension and transfers.

The H-1B visa is initially valid for three years. However, an additional three year extension can be obtained. After this six year period, further extensions can be obtained in certain circumstances.

It’s important to note that the six year period of stay includes time spent in the US on both H-1B and L-1 visas. After completing 6 years of stay in the US, a person cannot be readmitted in the US on a H-1B visa until he or she has remained outside the United States for at least one year. Brief trips to the United States on a visitor visa during this period of one year are permitted. The regulations are not clear as to whether the foreign national must complete the period of one year at the time he or she is applying for a new H-1B or at the time he/she enters the US on H-1B. The process of filing the H-1B paperwork is complex and it is imperative that one retains a competent attorney.

A foreign national with an approved H-1B petition is entitled to remain in the US on the H-1B for the full period of 6 years.

In some situations, the H-1B visa can be extended beyond 6 years. These exceptions are based on either 1) per-country limitations; or 2) long-pending labor certification application or immigrant visa petition. The per country limitations involve situations where the H-1B visa holder is otherwise eligible for a EB-1, EB-2, or EB-3 immigrant visa (a “green card”), but cannot receive one because of the per-country quota limitations. In practice, this exception is applicable to EB-2 and EB-3 preference categories. This exception allow the H-1B visa to be extended in three year increments. The second exception is the long-pending labor certification or immigrant petition exception, and it is for H-1B visa beneficiaries who have filed either a labor certification or employment-based immigrant visa petition by the end of the H-1B worker’s fifth year. The extension in the second case is in increments of one year. The extensions are permitted for as much time as needed for a final adjudication on the labor certification application or employment-based petition.

If these rules surrounding H-1B extensions seem complex, they definitely are and require a trained attorney to guide a H-1B visa holder through the process. We are also hoping that rational minds prevail and Comprehensive Immigration Reform will remove some of these complex hurdles for hard-working H1-B visa holders. Contact our office if you have any questions regarding the H-1B visa extension process or any other of your immigration issues.