What To Do if H-1B Expired After 6 Years?

Winning the H-1B lottery is a significant milestone for many foreign nationals seeking to work in the United States. The H-1B visa allows qualified individuals to live and work in the U.S. for an initial period of up to six years. However, understanding the nuances of this six-year limit and the implications of visa extensions can be crucial for H-1B holders, especially those considering green card sponsorship.

The Basics: H-1B Visa and the Six-Year Limit

Foreign nationals holding an H-1B visa are typically permitted to reside and work legally in the United States for a maximum of six years. Once this six-year period concludes, the visa holder must leave the U.S. for at least one year before they are eligible to reapply for a new H-1B visa. This reapplication requires going through the H-1B lottery process again, which determines whether an applicant can secure one of the limited H-1B visas issued each fiscal year.

However, there are exceptions to this rule for those whose employers have committed to sponsoring their green card. Under the American Competitiveness in the Twenty-First Century Act (AC21), certain H-1B holders can obtain extensions beyond the standard six-year period.

Calculating the H-1B Visa Six-Year Period

The six-year limit for H-1B visa holders is calculated from the date they begin working in the U.S. in H-1B status. However, if an H-1B holder spends time outside the U.S. or switches to a different visa type, this time does not count towards the six-year limit.

• Working Outside the U.S.: Any time spent working outside the U.S. does not count towards the six-year limit.
• Switching Visa Types: If an H-1B visa holder switches to a different visa, such as an F-1 student visa, the time spent under the new visa does not count towards the six-year H-1B limit.

If an H-1B visa holder leaves the U.S. during their visa period and wishes to return, they can apply to use any remaining time on their H-1B visa without needing to go through the lottery again, provided they have not exhausted the six-year limit.

Extending H1B Beyond Six Years

Scenario 1: Pending PERM or I-140 Application

If an H-1B visa holder has filed a PERM labor certification or an I-140 application within 365 days before the expiration of the six-year period, they may be eligible for an extension. This extension allows them to remain in the U.S. while waiting for their immigration application to be processed. Notably, there is no limit to the number of extensions as long as the immigration application remains pending, with the possibility of renewing the extension annually.

Scenario 2: Approved I-140, Awaiting Priority Date

If an H-1B holder’s I-140 petition has been approved but they are in visa retrogression (i.e., their priority date is not current), they can apply for a three-year extension beyond the six-year limit. Unlike the first scenario, there is no requirement to file 365 days in advance.

• I-140 Form: This is the Immigrant Petition for Alien Worker, a critical step in the green card process.
• Visa Retrogression: This occurs when the demand for immigrant visas exceeds the available supply, causing delays in processing and extending waiting times for green cards.

Conclusion

Understanding the H-1B visa’s six-year limit and the potential for extensions is crucial for anyone navigating the U.S. immigration system. For those lucky enough to win the H-1B lottery, being aware of these rules can help maximize the time spent working in the U.S. and provide a smoother path toward permanent residency.

By staying informed about the latest H-1B visa regulations and the H-1B lottery process, foreign nationals and their employers can better navigate the complexities of U.S. immigration.