Extension of a Work Visa: Employer's I-129 Petition Process

In order to extend an immigrant workers H-1B, TN, L-1, or similar temporary work visa, his or her employer must refile an I-129 petition.

By , Attorney

Several different types of temporary work visas are available to foreign nationals who want to work in the U.S.—and all of them come with a specified expiration date. Most of these visas are obtained by the foreign national's employer filing an I-129 petition with U.S. Citizenship and Immigration Services (USCIS).

As it happens, Form I-129 is also the one that employers must use to extend the employee's immigration status in the United States, if need be.

Finding Out Your Initial Visa Expiration Date

When USCIS approves an I-129 petition, it will issue an approval notice (Form 797, Notice of Action). This notice contains important information, including the duration of the foreign worker's newly authorized status in the United States.

For example, let's say your intended employer files an I-129 petition on your behalf to work in the U.S. with an H-1B visa. Your employer states in the petition that you will be employed from April 1, 2022 through March 31, 2025. When USCIS issues the approval notice, it will state that your H-1B status is valid for those exact dates.

In this example, if you do not apply to extend your status before March 31, 2025, once that date passes, you will be out of status in the United States. This can lead to serious immigration consequences, not the least of which is that you will no longer be eligible for an extension of your H-1B status or a change to virtually any other status, and will have to leave the country.

Be sure to check the dates on the approval notice carefully, because USCIS often makes someone's status valid for an extra ten days. You can work only until the petition expiration date, which typically is at the top of the approval notice. The bottom portion contains your I-94 Departure Record with the extra ten days. Those extra days are to give you time to depart the U.S. if your job is not continuing.

How to Extend Your Temporary Work Status Before It Expires

In order to extend your temporary work status, your employer must file an I-129 petition on your behalf requesting that USCIS extend your status. Different statuses can be extended for different periods of time, as follows:

H-1B: The H-1B visa for foreign nationals who are coming to the U.S. to work in a specialty occupation is typically granted for an initial validity period of three years. H-1Bs can be extended for three years (for a total of six years, or more, if your employer also is sponsoring you for a green card and reaches certain milestones in that process). To do that, your employer must file the I-129 petition, and USCIS must receive the petition BEFORE your current H-1B status expires.

Abiding by this time frame is called "filing a timely extension request." If your employer files a timely extension request, your status will automatically be extended while USCIS adjudicates the petition (this is true for all visas discussed in this article). On your extension petition, your employer must indicate that you want to extend your status (the employer does this on page 2 of the Form I-129) and provide the dates of your requested extension. In the example above, if you wanted to extend your H-1B status that was set to expire on March 31, 2022, your employer would indicate that your H-1B status should be extended from April 1, 2022 to March 31, 2025.

L-1: The L-1 visa is for employees who work for a foreign company that is an affiliate of a U.S. company. L-1 employees are transferred from the foreign company branch to the U.S. company branch, or the L-1 employee can be transferred by the foreign company to the U.S. in order to establish a U.S. office. The L-1 visa can be extended in two-year increments for a total of seven years for L-1A and five years for L-1B. Your employer must file the I-129 petition before your L-1 status expires and request that USCIS extend your status for two years.

O-1: The O-1 visa is for aliens of extraordinary ability who are coming to the U.S. to work in their field of expertise. The O-1 visa can be extended in one-year increments indefinitely. Similar to the H-1B and the L-1 procedure, your employer files an I-129 petition (which USCIS must receive before your O-1 status expires) and your employer must request the one-year extension on the I-129 form.

E-1 or E-2: The E-1 and E-2 visas allow nationals of certain countries to come to the U.S. in order to carry on trade or investment activities. You can obtain the E-1 visa as a Treaty Trader or the E-2 as a Treaty Investor. E-1 and E-2 visas may be extended in two-year increments indefinitely, by filing an I-129 petition before your status expires and requesting the extension period on the petition.

TN: The TN visa was created by NAFTA (the North American Free Trade Agreement, which was subsequently replaced by the U.S.-Mexico-Canada Free Trade Agreement (USMCA), but still provided for TN visas). You can obtain a TN visa only if you are a Canadian or Mexican citizen coming to the U.S. to work for a U.S. employer. You can extend your TN status in three-year increments indefinitely, by following the same procedures outlined above.

R-1: The R-1 visa allows foreign religious workers to come to the U.S. to work for a nonprofit religious organization as a minister or in a religious vocation or occupation. You can extend your R-1 visa in 2.5 year increments for a maximum of five years, also by following the same procedures outlined above.

Extension Issues Common to Work-Based Nonimmigrant Visas

To avoid trouble obtaining an extension, it's important that your employer include all of the necessary evidence with your I-129 petition. Failure to do so might cause USCIS to delay the processing of your extension petition or even deny the petition altogether.

One particularly important type of evidence is proof that you are maintaining your status by continuing to work for your U.S. employer. Typically, the easiest way to prove continuous employment is with copies of recent pay stubs and W-2s.

Additionally, your employer should submit copies of the evidence that it provided to USCIS in the original I-129 petition (such as a copy of your passport or previous visas, educational degrees, and transcripts, and so on). Even though USCIS already received this documentation, it will want to review it again in connection with your extension petition.

Extending Your Family Dependents' Status

All of the visas discussed above allow you to bring family dependents (spouse, as well as children under the age of 21) with you to the United States. Their status is dependent upon yours. When you are filing your own extension, you MUST also file an application to extend your dependents' statuses. If you do not, their statuses will expire and they will be in the U.S. illegally, which will lead to serious legal consequences.

To extend your dependents' statuses, file an I-539 application with USCIS. You can include all of the dependents on one I-539 petition, but each additional family member beyond the first must submit a separate I-539A Supplemental Information form. You can submit the I-539 and I-539As along with your employer's filing of your I-129 petition, or any time thereafter, as long as you make sure USCIS receives the I-539 and I-539As BEFORE your dependents' statuses expire.

Please note that although the I-539 can be filed with the I-129 petition filed by your employer on your behalf, you are the person who is responsible for actually completing the I-539 and putting the necessary documents together for this petition (many employers do NOT put together I-539 petitions for their employees' families).

How Appearance of "Immigrant Intent" Can Block Extensions

As you probably remember, you had to convince the consular officer, in order to obtain your nonimmigrant visa, that you were not secretly planning to remain in the U.S. beyond your permitted time. That requirement comes from Section 214(b) of the U.S. Immigration and Nationality Act, which says that all aliens are presumed to have "immigrant intent"—that is, to want to remain in the U.S. indefinitely.

In some situations, you will not be allowed to extend your work visa if USCIS thinks you have immigrant intent. USCIS may find that you have immigrant intent for any number of reasons, most notably if an immigrant petition (I-140, I-360, or I-130) has been filed on your behalf.

You don't need to worry about this if you are an H-1B, O-1, or L-1 visa holder. These visas are accorded what is called "dual intent," meaning the fact that these visa holders might have immigrant intent will NOT jeopardize their ability to extend their visas.

However, you might need to watch out for immigrant intent issues if you are in E, R-1, or TN status.

Such issues are sensitive and complex, and it would be in your best interest to consult an immigration attorney specializing in these matters.


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