H-1B Allowable Time FAQ (How Long Do I Get on an H-1B?)
Q: How long can I remain in the U.S. in H-1B status?
A: While the base period of time permitted in H-1B status is six years (in increments of up to three years at a time), in some circumstances a longer period of H-1B stay is permitted.
Q: In what circumstances can I get more than six years in H-1B status?
A: There are two circumstances where H-1b status can be extended beyond the initially allowable six years, both of which are intended to accommodate delays in processing for permanent residence.
Consequently, both circumstances require that the H-1B foreign national have already begun the process of applying for employment-based permanent residence (by having either a Labor Certification case or an I-140 Immigrant Visa Petition filed on their behalf) before the beginning of the sixth year of H-1B status.
The first circumstance involves situations where processing of the case is delayed by long government processing queues. This method is especially relevant for those with old-style (pre-PERM) labor certifications pending. These labor certification cases could easily take four or five years to be processed in some parts of the country, where high filing volumes could cause substantial processing delays. Where such delays in processing go beyond the initial six-year period of time available, the H-1B foreign national can extend the H-B past the six years in one-year increments. In other words, the foreign national can receive a seventh year, and then (assuming processing still is not complete) an eight year, and then a ninth year, etc.
The second circumstance which allows H-1B extensions beyond the normal six years concerns situations where processing has gone as far as it can (the labor certification and the I-140 Immigrant Visa Petition have been approved), but where no immigrant visa is immediately available for employment-based cases of that particular priority date in the preference classification for which the Immigrant Visa Petition has been approved. A detailed explanation of how the priority date and preference classification system works is available here. In these situations, an extension for a full three-year period is available.
Q: If I switch employers before the end of a three-year term in H-1B status and then get a new 3-year H-1B for the new employer, have I given up the remaining time on the first H-1B? Am I only allowed one extension?
A: No. A foreign national is allowed the initial six years in H-1B status no matter what, and can file as many extensions or amendment as you need as long as the total time doesn't exceed six years.
For example: a foreign national comes on a three-year H-1B for Company A, but after a year and a half decides to accept a job with Company B. Company B files for a new three-year H-1B. Halfway through the Company B H-1B (after three years of H-1B time have been used by the foreign national), the company switched the foreign national to a job so different from the original H-1B job with the company that an H-1B amendment is required. This amendment is approved for three years.
After one year, the foreign national decides that he does not like this job and accepts a position with Company C. The Company C H-1B is approved for the two remaining years of the six years available to this foreign national. The foreign national has had four different H-1B Approvals, but this is fine as long as the total time has not exceeded six years.
Q: My spouse has been in the U.S. in H-1B or L-1 status, and I have been in the U.S. with my spouse in H-4 or L-2 derivative ("family of") status. Does my time as an H-4 or L-2 count against my six permissible years in H-1B status if I now wish to take an H-1B job?
A: No, it does not - even someone here for five and a half years in H-4 or L-2 status can get a full six years in H-1B status. The original H-1B spouse may change status to H-4 to remain here with the spouse who now has an H-1B.
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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.