H-1B Visa Expiring While Waiting for a Green Card? Know Your Options

 

 

 

If your H-1B visa is expiring while you are waiting for a green card, you may qualify to extend your H-1B status beyond the usual six-year limit. Depending on your immigration history and the progress of your employment-based green card application, you may be eligible for one-year or three-year extensions. Other options may include recovering time spent outside the United States or changing to another immigration status. Understanding these options before your H-1B expires is essential to protecting your ability to work and remain in the United States.

What Happens When Your H-1B Reaches the Six-Year Limit?

The H-1B is generally granted for an initial three years and can be extended for another three, up to a six-year maximum. After that, you generally cannot remain in H-1B status unless an exception applies. For workers pursuing a green card, the dates of their PERM and I-140 filings can make a significant difference.

Can You Extend Your H-1B Beyond Six Years While Waiting for a Green Card?

There are two main routes, and the requirements differ.

One-Year H-1B Extensions Under AC21

Under the American Competitiveness in the Twenty-First Century Act (AC21), certain H-1B workers may qualify for extensions beyond the six-year limit in one-year increments.

Generally, this option may be available when at least 365 days have passed since a qualifying PERM labor certification application or Form I-140 immigrant petition was filed. The 365-day requirement must be satisfied before the requested extension period begins, although the employer may be able to file the extension petition earlier.

Eligibility depends on the status and history of the underlying green card case, including whether a qualifying application or petition has been denied, revoked, or otherwise ceased to support an extension.

Three-Year H-1B Extensions With an Approved I-140

Certain H-1B workers with an approved Form I-140 may qualify for extensions of up to three years beyond the normal six-year limit if an immigrant visa number is unavailable because of applicable per-country limitations.

This provision can be particularly important for workers facing lengthy employment-based green card backlogs. Eligibility depends on the applicable immigrant visa category, priority date, country of chargeability, and visa availability when the H-1B petition is filed.

Unlike the one-year extension provision, this option generally requires an approved I-140 petition.

What Is the Difference Between One-Year and Three-Year H-1B Extensions?

The timing of your H-1B extension petition is critical. For one-year extensions, your employer may be able to file before the 365-day requirement has been satisfied, provided it will be met by the time the requested extension period begins. For three-year extensions, eligibility depends on having an approved I-140 and meeting the applicable immigrant visa availability requirements. Because changes in your priority date, visa availability, or green card application can affect your eligibility, it is important to review your options well before your H-1B status expires.

Can You Continue Working While Your H-1B Extension Is Pending?

If your employer files a timely H-1B extension petition before your authorized stay expires, you may be permitted to continue working for the same employer for up to 240 days while USCIS processes the petition, provided the applicable requirements are met.

However, permission to continue working is not the same as an extension of immigration status. The rules can also differ depending on whether you are extending employment with your current employer or changing employers.

Because a pending petition does not automatically resolve every status or employment authorization issue, it is important to review your circumstances before your current H-1B authorization expires.

What Happens if Your PERM Application Is Still Pending When Your H-1B Expires?

PERM can take considerable time. Before filing, your employer needs a prevailing wage determination and must complete recruitment. However, the Department of Labor can take up to 12 months to process a prevailing wage. Recruitment can take up to 90 days.

Because the 365-day period begins when PERM is filed, starting late can leave you with fewer options. Many attorneys suggest beginning the process at least two years before your H-1B expires. This is a planning guideline, not a legal requirement, but it gives the employer more time to complete the necessary steps.

What Are Your Options if You Cannot Extend Your H-1B?

Can You Recapture Time Spent Outside the United States?

H-1B workers may be able to recover time spent physically outside the United States during their authorized H-1B period. This is commonly known as H-1B time recapture.

For example, if you spent several months traveling or working abroad during your H-1B period, some of that time may not count toward your six-year limit.

Your employer must request the additional time and provide supporting documentation, which may include passport stamps, Form I-94 travel records, flight itineraries, and other evidence of your time outside the United States.

Recapturing unused H-1B time may give you additional time to pursue permanent residency or qualify for another extension.

Can You Change to Another Immigration Status or Employer?

If you do not qualify for an H-1B extension beyond the six-year limit, changing to another immigration status may be an option, depending on your qualifications and circumstances. For example, individuals with extraordinary ability in fields such as science, business, education, or the arts may qualify for an O-1 visa. An L-1 visa may also be available to certain employees of multinational companies, although time previously spent in H-1B status generally counts toward the applicable L-1 maximum stay limits. Therefore, changing to L-1 status does not necessarily provide additional time in the United States.

Changing employers may also be an option, but it does not automatically reset the six-year H-1B limit. If you have an approved Form I-140 from a previous employer, that petition may support an H-1B extension beyond six years under certain circumstances. However, your new employer will generally need to begin a separate employment-based green card process, including obtaining a new PERM labor certification when required.

Because changing employers or immigration status can affect your ability to work and your pending green card application, consulting an experienced immigration attorney before making these changes is important.

What Common Mistakes Can Put Your H-1B Status at Risk?

One common mistake is waiting until the final H-1B year to begin PERM. The 365-day requirement cannot be waived simply because time is running short. Another is assuming that a green card case automatically follows you when you change employers.

The timing of the I-140 filing matters, too. Filing outside the validity period of an approved PERM can affect your options for future extensions. Keeping track of your H-1B expiration date alongside your PERM and I-140 dates can help you spot potential problems early.

Talk to Our Immigration Attorneys Before Your H-1B Expires

If your H-1B visa is approaching its expiration date and your green card application is still pending, waiting too long to explore your options could put your ability to remain and work in the United States at risk.

At Symphorien-Saavedra Law, attorney Frank Symphorien-Saavedra, Board Certified in Immigration and Nationality Law by the Florida Bar, and his team help clients navigate complex employment-based immigration matters, including H-1B extensions and green card applications.

Call 407-802-1717 to schedule a consultation and discuss your options before your H-1B status expires.