How long can I stay in the U.S. in H-1B status?

Initial H-1B petitions can be approved for up to three years. An extension may be filed for an additional three-year period. An extension must be filed before your current visa status expires in order to preserve your right to work. Generally, individuals are entitled to a maximum of six years in H-1B status. That six-year period includes periods of time in H-1B status with other employers as well as any time spent in H-1C, H-3 or L-1 status. There are two exceptions:

  1. If a labor certification or I-140 employment-based petition for permanent residence on your behalf has been in process for at least 365 days, your H-1B status may be extended in one-year increments until the time your permanent residency application is approved.
  2. If visas for your country of birth are oversubscribed and you are the beneficiary of an approved I-140 employment-based petition, your H-1B status may be extended in three-year increments until such time as your permanent residency application is approved.

Foreign nationals who are otherwise eligible for H-1B time beyond the sixth year may be granted an extension of stay regardless of whether they are currently in the United States or abroad and regardless of whether they currently hold H-1B status. A foreign national may therefore obtain post-sixth year time via an application for extension of stay or by means of H-1B visa issuance at a consulate (unless visa-exempt) and admission from abroad. Post sixth-year H-1B time can also be obtained through a petition to change status to H-1B from another nonimmigrant classification. Note that, in all cases, the foreign national must fulfill the basic H-1B eligibility criteria and the criteria for an additional period of stay pursuant to one of the two exceptions set out above.

U.S. immigration law provides that a foreign national who has already been counted against the H-1B cap within the six-year period prior to approval of an H-1B petition is exempt from the cap “unless the alien would be eligible for a full six years of authorized admission at the time the petition is filed.” Though the immigration regulations require a foreign national who has spent a full six years in H-1B status to spend one year abroad before he or she may be readmitted as an H-1B, the statute, USCIS has clarified that foreign nationals who previously held H-1B status and who did not exhaust their six-year maximum but who have been abroad for one year or more may seek readmission in H-1B status for the unused portion of the six-year period without being subject to the cap. In the alternative, these foreign nationals may seek readmission for a full six years as “new” H-1Bs, subject to the cap. Note that this policy does not apply to foreign nationals who were previously admitted in H-1B status but have not spent a year or more outside the United States; these foreign nationals are not eligible for a new six-year period of admission and can only seek readmission based on the time remaining from the initial six-year period.

Recapture of time. If you have spent periods of time abroad during the validity of your H-1B petition, you may be able to “recapture” that time and extend the duration of your H-1B stay for a period equal to the time you spent outside the U.S. Your spouse and dependents in H-4 status may also be granted extensions up to the new expiration date of your stay. If you have traveled outside the United States during your H-1B stay, please contact your lawyer to discuss the possibility of recapturing this time.

Related

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