Those who hold an H-1B visa can benefit from a number of benefits. The H-1B visa is extremely useful in light of the drawn-out procedure involved in locating an employer, being chosen in the lottery, and then being accepted. Because of this, it makes sense that many people would want to research an H-1B visa extension or renewal while they look for new jobs, progress toward getting green cards, or just want to keep working and residing in the United States. On this page, we examine the procedure, processing timelines for H-1B extensions, pertinent news updates, and more.
Requirements for H-1B Visa Extension Beyond 6 Years
- Labor Certification Application or Employment-Based Petition: H-1B holders with a pending Labor Certification Application for over 365 days or an employment-based petition can extend their visa beyond the 6-year limit.
- Limited to Employment-Based Green Card Applicants: The 7th-year extension is available only for those applying for green cards through the employment-based category, not for family-based petitions.
- Extension for Adjustment of Status Backlog: H-1B extension is possible if the visa holder filed an employment-based preference petition but cannot proceed with adjustment of status due to priority date backlog.
- Employment Authorization for H-4 Spouses and Dependents: If the primary H-1B visa holder has an approved I-140, their H-4 spouse and dependents can apply for employment authorization (EAD) and work for any U.S. employer (excluding security clearance jobs).
- Continued Work Authorization with Approved I-140: H-4 holders’ work authorization can be extended as long as the primary visa holder has an approved I-140. If the I-140 is withdrawn or the primary visa holder changes jobs, EAD renewal requires another approved I-140 within the expiration period.
USCIS Increases Automatic Extension Period for EADs: Temporary Measure to Prevent Employment Gaps
In May 2022, the U.S. Citizenship and Immigration Services (USCIS) made an important announcement regarding the automatic extension period for Employment Authorization Documents (EADs) and employment authorization. The temporary measure aimed to prevent employment gaps for certain EAD renewal applicants, extending their employment authorization for up to 540 days.
The automatic extension period change was implemented to address the existing backlog of EAD cases and provide support to noncitizens and their families while minimizing disruptions for U.S. employers. USCIS recognized that the previous 180-day automatic extension period was insufficient for addressing the caseloads.
USCIS Director Ur M. Jaddou stated, “This temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families while avoiding further disruption for U.S. employers.”
It's important to note that this temporary extension period applies to eligible individuals filing I-765 renewal applications until October 27, 2023. After this date, the automatic extension will revert to the standard 180-day period.
By increasing the automatic extension period for EADs, USCIS aimed to alleviate the challenges faced by noncitizens in maintaining employment and providing for their families. This temporary measure helps bridge the gap and ensures continuity in employment while USCIS addresses the backlog of EAD cases.
H-1B Visa Renewal Process
If you are an H-1B visa holder and wish to extend your stay beyond the initial period, filing an extension request is necessary. Here is a step-by-step guide on how to file an H-1B visa extension:
Step 1: Gather Required Documents
- Collect the necessary documents, including the filing fees, new H forms, new Labor Condition Application (LCA), new employer letter, photocopy of the H-1B approval notice from the original petition, and other supporting documents.
Step 2: Prepare Extension Petition Package
- Create an extension petition package that includes one copy of each document required. Make sure to follow the instructions and guidelines provided by USCIS.
Step 3: Timing of Filing
- Submit the extension request up to 6 months before the expiration date of your H-1B status. Note that the I-129 instructions mention a 4-month timeframe, but the 6-month option is allowed.
Step 4: Form I-129 Submission
- Your employer should file Form I-129 on your behalf along with all the necessary documents. This form serves as the basis for the H-1B visa extension request.
Step 5: New Labor Condition Application (LCA)
- Your employer must submit a new Labor Condition Application (LCA) for the extension period beyond the initial three-year period. Unlike before, the new rule requires the approved LCA to be obtained from the Department of Labor before filing the I-129.
Step 6: Timely Filing Lock-In
- By law, the timely filing of an extension request ensures the foreign national’s legal status and work authorization for the sponsoring employer for an additional 240 days beyond the expiration date of the H-1B status.
Following these steps and ensuring the timely submission of the extension request will help you maintain your legal status and continue working for your sponsoring employer. It is advisable to consult with an immigration attorney or professional to ensure compliance with all the requirements and procedures.
H-1B Visa Extension Options: What You Need to Know
If you are an H-1B visa holder, there are different options available for extending your stay beyond the initial 3-year period. Here are the H-1B visa extension options you should be aware of:
Option 1: 1-Year H-1B Extension
- You can apply for a 1-year H-1B extension beyond the 6-year limit.
- To qualify, the PERM petition or the I-140 must have been filed at least 365 days before the expiration of the initial 6-year period.
Option 2: 3-Year H-1B Extension
- You may be eligible for a 3-year H-1B extension if you have an approved I-140 petition for the EB-1, EB-2, or EB-3 employment-based green card categories.
- This extension is granted when the immigrant visa number is unavailable, allowing beneficiaries to stay in the U.S. without having to return home while waiting for priority dates to become current.
Option 3: “Recapture” Time
- If you have traveled outside the United States during the validity of your H-1B visa, you can request an H-1B extension by “recapturing” the time spent abroad.
- To qualify, you need to provide evidence of your departure, including U.S. entry and return dates, I-94 copies, and related stamps.
- This option allows you to extend your H-1B visa for a period equivalent to the time spent outside the U.S.
For example, if you traveled to your home country for two months during your H-1B stay, you may be eligible for a two-month H-1B extension beyond the normal 6-year limit, provided you can provide evidence of your departure.
Understanding these H-1B visa extension options can help you make informed decisions about your stay in the United States. It’s important to consult with an immigration attorney or professional to determine the best option for your specific situation.
H-1B Extension Documents Checklist:
If you are planning to apply for an H-1B visa extension or renewal, it’s important to gather the necessary documents. Here is a checklist of the documents required for both employees and employers:
- Copy of passport with the original H1B visa (if any)
- I-797 approval notice issued by the USCIS
- I-94 Arrival/Departure form with a valid departure date
- Resume or curriculum vitae (CV)
- Evidence of employment, which can be demonstrated through:
- Three previous paychecks
- Leave of absence letter
- Letter from the employer
- University bachelor’s or advanced degree
- University transcript
- Academic evaluation
- Letters of recommendation from prior employers
- Copy of the job offer letter stating the salary, job title, and duties agreed upon by both the employer and the H-1B employee
- Job description
- Company brochures or marketing materials
- Copy of the company’s most recent Financial Statement, Business Plan, or Annual Report (if available)
- Copy of the Articles of Incorporation (if available)
Preparing these documents in advance will help streamline the H-1B extension or renewal process and ensure a smooth application submission. It’s always recommended to consult with an immigration attorney or professional to ensure all the necessary documents are included and to address any specific requirements.
Process for Extending an H-1B Visa for Spouses
After the 6-year restriction has passed, spouses of H-1B visa holders are entitled to extend their H-4. As long as the H4 holder has not broken any laws or breached the terms of their visa, an extension is typically approved.
However, just because the primary H-1B holder has been granted an extension does not mean that other linked H4 holders will also be granted extensions. It is crucial to keep in mind that H-4 beneficiaries must submit Form I-539 along with documentation proving their link to the primary H1B holder at the same time as the first H-1B extension application.
H-1B Visa Extension Costs and Expenses
Obtaining an H-1B visa extension entails certain fees, which are similar to those incurred during the initial visa application. These fees include:
- The filing fee for another I-129 petition: $460
- Amended Public Law 114-113 fee (if applicable): $4,000
- ACWIA fee: $750 or $1,500, depending on the employer’s size (25 employees or less)
- Fraud Prevention and Detection Fee: $500
- Optional fees:
- Premium processing: $2,500
- Attorney fees: VisaNation Law Group provides a breakdown of their legal fees.
It is important to note that the majority of these fees are the responsibility of your employer. However, the premium processing fee can be paid by either you or your employer. If you choose to pay the premium processing fee, your employer must demonstrate that it is for your personal benefit rather than theirs. Consulting with an immigration attorney will provide you with a comprehensive understanding of the costs associated with obtaining an H-1B visa extension.
H-1B Extension 240-Day Rule
The H-1B Extension 240-Day Provision
If you have reached the standard maximum duration of your H-1B visa, which is typically six years, and have applied for an extension beyond this limit with an approved I-140, you still need to adhere to the visa validation period.
Under the 240-Day Provision, an H-1B visa holder with a pending extension can continue working under the following conditions:
- The H-1B employee maintains valid status while filing the extension petition.
- The sponsoring employer submits the extension petition on time before the current status expires.
- The USCIS receives the petition before the employee’s current status expires.
- The H-1B employee continues to work for the sponsoring employer who filed the extension.
While it is advisable to apply for the extension well before the validation period ends, the processing time for H-1B extensions can vary. Fortunately, the USCIS has a provision for situations where the H-1B validation period expires while the petition is still pending.
According to the 240-day rule, you are allowed to remain in the U.S. and continue working for your current employer during this period. If your petition is approved within this time frame, the 240-day work authorization will cease, and your H-1B extension will take effect. However, if your petition is denied, this provision will immediately end, and you must stop working and make arrangements for alternatives or plan to leave the country.