Learn how to apply for an extension of your H-1B status, and for how long you can stay in the United States.
If you are a foreign national working in the United States on an H-1B visa, you might eventually come to a point where you have to file for an extension of your permitted stay. The maximum period you'll be allowed to stay on initially in H-1B status is three years. After that, you can apply for extensions up to a maximum of an additional three years.
In limited circumstances, you might even be able to get permission for an extension of stay beyond the six-year maximum. That normally requires an employer to sponsor you for a green card and meet certain milestones well before you reach the end of your six years.
Watch out if you've also spent time in the U.S. on an L visa or another H visa: These stays count against your six-year maximum. However, you do have the option of leaving the United States for a year, then reapplying for any of these visas.
The process of applying for an H-1B extension involves going through much the same process as you did originally in applying for the H-1B visa. We describe this process below.
Don't Wait Until Current H-1B Status Expires to Seek an Extension
Your employer will need to file for your renewal before, not after, your currently permitted stay expires. Once you're out of status, you are not eligible for an extension unless you can prove:
- the delay was due to extraordinary circumstances beyond your control
- the length of the delay was reasonable
- you have not otherwise violated the terms of your H-1B status
- you are still a bona fide nonimmigrant, and
- you have not been placed into removal (immigration court) proceedings.
How to Apply for an Extension of Your H-1B Visa
As before, your employer will need to file a Form I-129 on your behalf, with the H Supplement and supporting documents. These documents include a letter describing your position within the company, copies of your university diploma(s) and transcript(s), copies of your passport and I-94 Departure Record, paychecks and W-2s to show you've been working and getting paid, and the Form I-797 that USCIS originally issued to approve you for H-1B status.
If you have a spouse and children who also need extensions, then you'll need to file a Form I-539 for them—they can all be included on a single Form I-539. Note that each additional family member beyond the first must submit a separate Form I-539A.
Your employer will also need to submit a new Labor Condition Application (LCA) for any extensions beyond the three-year period of initial USCIS approval of your H-1B petition. Unlike in the past, it is not enough for the employer to submit the Form I-129 with evidence that the LCA is pending: your employer must actually receive certification of the LCA from the Department of Labor (DOL) first, and submit the certified LCA.
USCIS May Send Someone to Investigate Your Right to an Extension
Before or after approving your extension, USCIS has the power to conduct a site visit, and interview you and your supervisors in person, through its Fraud Detection and National Security (FDNS) office.
It's Not a Problem If You're Separately Applying for a U.S. Green Card
To qualify for most nonimmigrant (temporary) visas, applicants must prove that they do not secretly intend to live permanently in the United States. However, many H-1B applicants apply for a green card while in the U.S., often through the same employer that sponsored them for the H-1B. That is considered acceptable for H-1B visa holders, because of a doctrine known as "dual intent."
When You Can Apply for More Than a Six Years' H-1B Stay
Only two circumstances will make you eligible for more than six years on an H or L visa. The first is if you have an approved preference petition (for a U.S. green card) and are otherwise eligible for adjustment of status but for the unavailability of an immigrant visa due to the waiting period created by per-country limits. In such a situation, you'd want to include a copy of your I-140 approval notice with the extension petition.
The second situation allowing you to request an extension beyond six years is if a labor certification or I-140 petition was filed on your behalf more than one year ago and USCIS has not denied it. This most often translates into needing your employer to submit the labor certification application while you are in your fifth year of H-1B status. It often takes several months to prepare and submit a labor certification application, so don't wait until the last minute.
If your ultimate goal is to obtain U.S. lawful permanent residency, a good time to talk to your employer about starting the green card process is when extending your H-1B status for the second three-year period. That way, you're working on getting your second three years of H-1B status and also starting the green card process to ensure that you'll be able to get more H-1B time beyond the six-year limit in case the green card process takes longer.
If you have difficulty applying for an extension of your H-1B visa or you have questions about the application process, consult with an experienced U.S. immigration attorney, who can guide you through the process.
