Immigration

Srinivasa Reddy Kandi: Extending H1B Visas Beyond Six Years in Annual Increments.

February, 13, 2025-04:32

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 Extending H1B Visas Beyond Six Years in Annual Increments: 

A foreign national typically faces a maximum stay of six years in H1B status; however, the law allows for several exceptions to this rule. The most prevalent exceptions involve extensions granted in increments of three and one year. This article specifically addresses one-year extensions applicable when an employment-based permanent residency (“green card”) application has been submitted at least 365 days prior to the conclusion of the sixth year in H1B status. For the majority of green card applications, the process initiates with the submission of the PERM labor certification, while cases exempt from this requirement begin with the I-140 immigrant petition.

Challenges may arise if a foreign national's priority date has been current for over a year without filing for adjustment of status (Form I-485) or applying for an immigrant visa. In these instances, the foreign national cannot qualify for the one-year extension unless it can be shown that the delay in filing was due to factors outside their control. Nevertheless, there are strategies that can be employed to pursue an extension in such scenarios. It is essential for foreign nationals seeking employment in the United States and aiming for lawful permanent residency to be aware of these strategies.

Examples of Situations Beyond the Control of the Foreign National
When applying for an H1B extension under this exemption, it is crucial to present strong evidence explaining why the adjustment of status or visa application was not submitted within the designated timeframe. The USCIS may recognize the following situations as valid:

Loss of Employment Due to COVID-19 or Economic Challenges: If the foreign national's I-140 employment was terminated during the pandemic or other economic crises, hindering their ability to continue with the green card process.
Employer's Inability to Continue Green Card Sponsorship: Instances where the employer experienced financial difficulties, ceased operations, or retracted support for the green card application.
Health or Family Emergencies: Personal issues, such as serious health problems or family emergencies, that obstructed timely filing. Conversely, voluntarily resigning from a position and not promptly starting the green card process with a new employer may not qualify as circumstances beyond one's control.
Demonstrating Progress Toward Green Card Sponsorship

To enhance the argument for an H1B extension, foreign nationals should illustrate that they are actively working towards obtaining their green card with a new employer. This typically involves providing proof that the new employer has commenced the PERM labor certification process, even if it remains in the preliminary stages due to delays in prevailing wage determinations at the U.S. Department of Labor. While these delays may restrict the foreign national's ability to utilize the new employer’s PERM for extending the six-year limit, it remains crucial to present evidence of ongoing efforts and the intention to file for the green card.

Conclusion
Extending H1B status beyond the six-year limit, particularly when the form I-485 or application for an immigrant visa has not been submitted within one year of visa availability, necessitates meticulous documentation and strategic planning. Effectively demonstrating that the inability to file was due to factors outside the foreign national’s control, along with proof of active green card sponsorship initiatives, is essential for improving the likelihood of approval.

Srinivasa Reddy Kandi is an Immigration policies researcher and immigration laws analyst.
Kandi Srinivasa Reddy, Srinivasa Reddy Kandi, #KandiSrinivasaReddy, #SrinivasaReddyKandi
Disclaimer: The information presented here is general in nature and might not be applicable in any given situation. It should not be interpreted as legal advice or taken for granted that it is always current.