Must Leave the US After Six-year H-1B Period Expires? There’re Two Exceptions!

| H-1B Visa Six-year Period

Winning the H-1B lottery, must be nice.

Foreign nationals holding an H-1B visa are generally allowed to reside legally in the United States for six years.

Once the six-year period is over, they must leave the United States for at least one year before they can apply for a new H-1B visa again.

Of course, when applying for the H-1B visa again, they would need to go through the lottery process again. However, for those whose employers have promised to sponsor their green card, there is no need to worry too much. According to the American Competitiveness in the Twenty-First Century Act, certain H-1B holders can be granted extensions beyond six years.

There are two scenarios, both of which apply to foreign employees who are in the process of applying for a green card and already hold an H-1B visa.

| Scenario 1 - Filed PERM or I-140 Application

If an H-1B visa holder submits a PERM labor certification or I-140 application within 365 days before the expiration of the six-year period and is awaiting approval, they can apply for an extension once the six-year period is over. In other words, these individuals do not need to leave the United States due to waiting for the approval of their immigration application. In this case, there is no limit to the extension period as long as the immigration application is still pending, and they can apply for an extension annually.

The PERM labor certification is a permit to prove that a foreign national is eligible for immigration based on occupational skills. Therefore, for most employment-based immigration applications, applying for the PERM labor certification is a necessary step. The only exception is the second preference category of employment-based immigration applications that qualify for a National Interest Waiver (NIW), which does not require a PERM labor certification and allows direct immigration application.

Apart from NIW, the following categories of immigration applications require a PERM labor certification before applying for immigration:

• Employment-based second preference (EB-2) for professionals/technical personnel, including teachers, engineers, computer programmers, department managers, analysts, accounting professionals, and various other professionals in different fields.

• Employment-based third preference (EB-3) for skilled/unskilled workers, including lead cleaners, electricians, painters, plumbers, carpenters, masons, chefs, etc.

| Scenario 2 - Approved I-140 Application, Awaiting Priority Date

If an H-1B holder's I-140 has been approved and they are in visa retrogression, meaning there are currently no immigrant visa spots available (priority date is not current), they can apply for a three-year extension beyond the six-year period. In this case, there is no need to apply 365 days in advance.

• I-140 form: Officially known as the Immigrant Petition for Alien Worker.

• Visa retrogression refers to the backward movement of immigrant visa availability in the United States. It occurs when the number of applicants exceeds the processing capacity of the immigration authorities, leading to a temporary halt in processing pending applications and prioritizing earlier applications. This results in longer waiting times for recently filed applications to receive a green card.

| How is the Six-year Limit for H-1B Calculated?

• The calculation of these six years starts from the date the visa holder begins working in the United States in H-1B status.

• If the visa holder works outside the United States or holds a different type of visa, the six-year period for H-1B usage will not be counted.

• If the visa holder leaves the United States during the H-1B visa period and wishes to return to the United States to work again using the H-1B status, they need to check if there is any remaining time left in their H-1B visa usage. If there is remaining time, they can directly reapply for an H-1B visa through a new U.S. employer without the need for another lottery.

• If the visa holder switches to another type of visa, such as an F-1 student visa, within the H-1B visa period and wants to work again using the H-1B status, they also need to check if there is any remaining time left in their H-1B visa usage. If there is remaining time, they can reapply for an H-1B visa through a new U.S. employer without the need for another lottery.

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