visa is a nonimmigrant visa. That means
it it does not allow its holder to remain in the U.S. permanently, as an
immigrant, but instead expires after a specified period of time. When the visa expires,
the H-1B worker must either leave the
foreign worker with an H-1B visa can stay in the
When calculating how much time an H-1B worker has remaining, it is important to understand exactly what time periods count towards the six-year maximum.
only the time the worker spends in
example, let’s say a Russian citizen has an H-1B visa that is valid from
October 1, 2015 through September 30, 2018. From January 1, 2016 through April
1, 2016, the worker goes to
This concept is critically important because immigration law allows H-1B workers to “recapture” any lost time so as to take advantage of the full six-year maximum. Let’s say that the Russian H-1B worker extended the visa from October 1, 2018 through September 30, 2021. Because the worker can “recapture” the lost three months of H-1B time from 2016, the worker will be able to extend the H-1B visa a third time—from September 30, 2021 through December 29, 2021. This third extension ensures that the worker uses up the full six years of H-1B status.
addition to the time spent in H-1B status, however, any time a worker spends in
important point is that any time you spend in the
Two groups of H-1B visa holders qualify to extend their visa past the normal six-year maximum. These are outlined in a law called the American Competitiveness in the Twenty-First Century Act, commonly referred to as AC21.
First, an H-1B worker can extend H-1B status if the worker is the beneficiary of an approved immigrant worker petition (I-140) and cannot file a green card application because the worker’s "priority date" is not current.
For example, let’s say your six years of H-1B status will end on February 1, 2016, and you are an Indian national with an approved I-140 in the EB-2 category. Your priority date is December 1, 2011. Per the February 2016 Department of State Visa Bulletin, the cutoff date for your category is July 1, 2009 (meaning only those persons with priority dates on or before that date can get green cards). Therefore, your priority date is NOT current, and you cannot yet file your green card application. In this situation, you are eligible to extend your H-1B status for another three years.
Second, an H-1B worker can extend the visa if a U.S. employer filed a Labor Certification application (a PERM) or an I-140 petition on the worker’s behalf prior to the beginning of the sixth year in H-1B status, as long as that application/petition has not been denied (it may have been approved or still be pending).
For example, let’s say your sixth year of H-1B status will end on September 1, 2016. As long as a
Importantly, there is no limit to how many times an H-1B worker can use these AC21 provisions to extend a visa. Due to the major backlog in priority dates for some categories, you could potentially be in H-1B status for ten, 15, or 20 years while waiting for your priority date to become current.
However, please note that AC21 does not allow a worker to extend an H-1B if the worker is a beneficiary of a family-based immigrant petition. AC21 allows H-1B workers to extend their visas only if they are the beneficiaries of employment-based petitions.