It is not only difficult but incredibly lucky to score an H1B visa. Given the sponsorship, processing times, and lottery – staying in the US and keeping H1B visa status beyond the original six years is often a top priority for many H1B visa petitioners. Whether you are seeking new employment, working toward a green card, or simply hope to keep living/working in the US, this post will dive into the details of the H1B visa and H1B visa extension within the US.
What is the H1B Visa?
The US Citizenship and Immigration Services (USCIS) created the H1B visa program as the primary method for employers to recruit & hire international professionals and international students to work in the USA. The H1B visa enables US employers to hire foreign professionals for a specified period of time. The H1B program allows workers in specialty occupations to work in the US for up to a total of six (6) years.
One of the things that makes the H1B so desirable is that, unlike many other nonimmigrant visa categories, it is a “dual intent” visa. This means that a visa will not be denied simply because a person has intentions to become a permanent resident. The assumption is that if for some reason the permanent residency petition is denied, the person would still have the intention to return home.
To qualify for the H1B visa, an applicant must find a US job and obtain sponsorship. Additionally, the job must be considered a specialty occupation. A specialty occupation is one that meets the following criteria:
- The minimum entry for the job is a Bachelor’s degree or higher
- The job is so complex or unique that only someone with that particular education can do it
- The employer normally requires a degree or its equivalent for the position
- The job is so complex that the knowledge required to do the job requires a bachelor’s degree or higher
H1B Visa Extension Restrictions
Any foreign national that has already obtained an H1B visa must remember that the H1b visa is only valid for a period of six years. Once H1B visa holders reach that six-year maximum, they are required to leave the US. Additionally, they must remain outside of the US for at least one year before they are again eligible to apply for an H1B visa. However, this H1B visa petitioner must go through the entire process again, including: meeting the eligibility requirements, having an H1B visa sponsor, the cap and lottery process, and wait the required H1B visa processing time.
The difficulty in re-obtaining an H1B visa may stem from the dual intent nature of this particular visa. You have six years to work in the US and continue to seek permanent resident status. While the process is usually not that simple, the US government has decided that six years is enough time for this task. The strict nature of the H1B visa requirements and lottery process mean that if one is interested in obtaining permanent residency within the US and has successfully obtained an H1B visa, do not waste a moment. Speaking with a skilled immigration attorney at the earliest possible stage is always a smart course of action.
H1B Visa Extension Exemptions
The USCIS has established 4 ways that a foreign national may be eligible to receive exemption from the six-year limitation:
- Certain foreign nationals that do have H1B visa status and meet certain criteria may extend their H1B visa beyond the typical six-year limits. If one works in the US either intermittently, on a seasonal basis, spend less than 6 months a year in the US, or work part-time but reside abroad and commute to the US, they would be exempt from the six-year limitation. If an employer can prove that the H1B visa petitioners presence in the US falls under one of those four categories, H1B visa status can be extended indefinitely.
- Under USCIS regulations, any time spent outside the US does not count toward the maximum period of H1B visa stay in the US. You must submit proof of your international travel. Only full days outside the US count against the six years.
- H1B visa status can be extended in one year increments, indefinitely, past the sixth year if certain conditions are met. The foreign national has a pending or approved Labor Certification or I-140. Plus, the I-140 was filed at least 365 days before the end of the sixth year or the requested H1B start date. The H1B holder will not be eligible for this 1 year H1B extension after 6 years if he or she fails to file for Adjustment of Status or an immigrant visa within one year of the priority date becoming current.
- H1B status can be extended in three year increments, indefinitely, past the sixth year if the following conditions are met:
- The foreign national has an approved I-140,
- The foreign national is unable to file for Adjustment of Status or apply for an immigrant visa because an immigrant visa number is not available.
A missing immigrant visa number has to be proven. An employer must show that visa numbers are not available the day they file. The USCIS usually grants these petitions.
H1B Visa Current Status
The H1B visa appears to be in jeopardy due to a number of initiatives by the Trump administration. Many have taken direct aim at this particular visa program making entry far more difficult. Right now, the USCIS is denying many visas. The denials at historically higher numbers.
This uncertainty has resulted in many H1B visa petitioners instead filing for an EB5 visa. The EB5 visa allows for certain foreign investors to obtain US permanent residency.
EB5 Visa Requirements
To qualify, the investor must meet the following:
- capital investment amount requirements
- job creation requirements
- ensure that the business receiving the investment qualifies for the EB5 program
Many love this visa option because it does not require sponsorship. However, it is not a visa option for everyone. EB5 visa applicants must make a $500,000. to $1 million capital investment. This investment goes to a US commercial enterprise.
The investment can take the form of cash, inventory, equipment, secured indebtedness, tangible property, or cash equivalents. The value is based on the US dollar fair-market value (FMV).
H1B Visa Extension
Six years is a long time to live and work in the US to then have to leave everything. Many people enjoy their jobs and lives and want to continue in the US. The USCIS does give some room for H1B visa extension. However, knowing if you meet the requirements may take an immigration attorney.
For some additional reading, check out an additional piece on our blog that is related.
LawTrades Knows Immigration Law
Are you hoping to extend your H1B Visa? Are you hoping to discuss the EB5 alternative? Either way, LawTrades can pair you up with a seasoned immigration lawyer. Finding the best way to stay is our job while you focus on your own job.