H-1B visas are granted for three years but can be extended for another 3 years under US immigration laws. What happens after six years? Do foreign workers holding H-1B visas return to their home countries? Or, can they legally remain in the US even after the expiration of six years?
The answer is yes, even though an H-1B is a temporary visa. H-1B visa holders may be eligible for an H-1B extension beyond the sixth year if they are the beneficiary of an approved immigrant visa petition under the EB-1, EB-2, or EB-3 classifications and all other conditions are met as set by immigration regulations. Further, applicants must meet eligibility criteria to receive immigrant status, which is subject to per-country or worldwide limitations on immigrant visas.
In such a case, the petitioners must demonstrate that the visa is ‘not available’ as of the date they file an H-1B petition with USCIS. USCIS may grant extensions on this basis in up to 3-year increments until they make a final decision to revoke the approval of the immigrant visa petition or to approve or deny the application for an immigrant visa or application to adjust status to lawful permanent residence.
Dmitry Litvinov, CEO and Founder of Dreem says, “An extension beyond the standard limit is possible under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21 law). This law is tied to the immigrant petition process through Form I-140.”
Sharing an example, Litvinov says, “If a PERM application or I-140 petition was filed at least 365 days before the expiration of the six-year H-1B limit and is still pending (or if an I-485 has already been filed), the H-1B can continue to be extended in one-year increments over and over until the green card process is fully completed.
Form I-140 is filed by employers to petition for an alien worker to become a lawful permanent resident in the United States, while Form I-485 is filed by non-immigrants to apply for lawful permanent resident status if they are in the United States.
Effectively, the AC21 provision allows certain employment-based adjustment of status applicants experiencing delays in the employment-based adjustment of status process some flexibility to change jobs or employers while their Application to Register Permanent Residence or Adjust Status (Form I-485) is pending.
If eligible, the Immigrant Petition for Alien Workers (Form I-140) can remain valid, allowing the beneficiary of an approved employment-based immigrant visa petition in the 1st, 2nd, or 3rd preference category to transfer to a new job offer in the same or a similar occupational classification. This new offer may be from either the same employer or a different one. An applicant who successfully ports the petition on which the adjustment application is based to a new job or employer retains the priority date of the underlying petition.
“If the I-140 has already been approved, but the applicant cannot yet file Form I-485 because the priority date for the applicant’s category/country is not current due to visa bulletin backlogs, the individual may receive H-1B extensions in three-year increments beyond the normal six-year limit. These three-year extensions can also be renewed repeatedly until the priority date becomes current,” adds Litvinov.
Takeaways
A recent social media post where a person claimed to have been living in the United States on an H-1B visa for 20 years took netizens by storm. But that is well within US immigration laws. The six-year H-1B limit is not necessarily final.
Foreign workers actively pursuing permanent residency through an approved I-140 petition or pending I-485 may qualify for extensions under the AC21 law until their green card process ends. Given the long visa backlogs, particularly for applicants from countries like India and China, such extended stays spanning decades are not uncommon.
Disclaimer: This article is for informational purposes only and does not constitute legal advice. Immigration laws and policies are subject to change. The views and opinions expressed by the individuals quoted are their own and do not necessarily reflect the views of the publication. Readers are strongly advised to seek advice from a licensed immigration attorney before making any decisions regarding their visa status or immigration process.