How to Extend H-1B Beyond the Sixth Year if I-140 is Not Approved

Posted by Nishu Sharma | Sep 13, 2022 | 0 Comments

We at SanSha Law Office, PLLC, recommend that employers start the PERM process for their employees as soon as possible and not wait for the fifth or sixth year of H-1B. An H-1B non-immigrant worker can stay in H-1B status in the U.S. for a maximum of 6 years, with extensions under certain circumstances. Presently it is taking almost 17 odd months to finish the first two steps related to the PERM process, which includes PWD and PERM certifications. Therefore, if an employer starts the PERM process for its H1B non-immigrant worker in the fifth or the sixth year, it is highly likely under the present scenario that the I-140 will not be approved by USCIS by the time the non-immigrant worker will run out of 6 years in H-1B status. However, it is never too late to start the PERM process; if an employer cannot begin the PERM process for the H1B non-immigrant worker in the first four or five years of H1B, all is not lost. The employer can still start with the PERM process at this time.

Now, under sections 104 and 106 of the American Competitiveness in the 21st Century Act ( AC21), it is possible to extend H-1B status beyond the six-year limit for the following non-immigrant workers:

  1. 365 days or more have passed since the filing of any application for labor certification (Form ETA 9089) that is required or used by the alien to obtain status as an EB immigrant; or
  2. 365 days or more have passed since the filing of an EB immigrant petition (I-140); or
  3. The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.

Now, what is 365 days rule? As discussed above under AC21 § 106, an H-1B non-immigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 9089) or a petition for the immigrant worker (Form I-140) has been filed on the alien's behalf. Extension in this situation will only be granted in one-year increments until the labor certification, or I-140, is denied. Suppose the H1B non-immigrant worker would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status. In that case, the extension of the stay request cannot be granted. Therefore, for 365 days rule to apply, the employer should file the labor certificate at least 365 days before the end of the sixth year of the H1B status. The H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility.

 We regularly update our blog section to acquaint the community with to latest changes in Immigration policies. Please note the information in this blog is for informational purposes only and is not intended to be nor should it be construed as legal advice. We can promptly and efficiently represent clients located anywhere in the US or abroad on US Immigration Policies. If you seek further clarification, don't hesitate to contact SanSha Law Office at [email protected] or call us at 469-777-6161.

About the Author

Nishu Sharma

Ms Nishu Sharma is the founder and Managing Attorney of SanSha Law Offices PLLC. It was founded on the principle and commitment to serve the people with the best service that we can provide. The firm has served clients from Texas and other states of the US. She has handled all kinds of complex im...


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