The H-1B 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 United States, obtain an extension of the visa, or apply for a different visa. If the worker simply stays in the U.S. past the expiration of the visa, the worker loses legal status in the U.S. and can be deported (removed).
A foreign worker with an H-1B visa can stay in the U.S. for a maximum of six years. The H-1B visa is initially valid for three years and can then be extended for another three years. At the expiration of the six-year maximum, the foreign worker must either leave the U.S. or obtain a different visa (such as an F-1 student visa or O-1 worker visa).
What Time Counts Toward the H-1B Six-Year Maximum?
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.
First, only the time the worker spends in the U.S. in H-1B status counts towards the six-years. Any time spent outside of the country does not count, even if the person leaves and reenters the U.S. with an H-1B visa.
For example, let’s say a Russian citizen has an H-1B visa that is valid from October 1, 2007 through September 30, 2010. From January 1, 2008 through April 1, 2008, the worker goes to Russia to visit family. Those three months away from the U.S. do not count towards the six-year maximum.
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, 2010 through September 30, 2013. Because the worker can “recapture” the lost three months of H-1B time from 2008, the worker will be able to extend the H-1B visa a third time – from September 30, 2013 through December 29, 2013. This third extension ensures that the worker uses up the full six years of H-1B status.
In addition to the time spent in H-1B status, however, any time a worker spends in the U.S. in L-1 status also counts towards the six-year maximum. Many workers go back and forth from L-1 visas to H-1B visas, so it is very important to calculate how long the worker was in the U.S. with each visa, since all of the time spent in L-1 status is applied to the H-1B six-year maximum. (The same recapturing provisions also apply to L-1 visa holders, too. If you have an L-1 visa and leave the country, you can recapture that time you spent outside of the U.S. and apply it to your remaining H-1B time).
Another important point is that any time spent in the U.S. in dependent H (H-4) or L (L-2) status does NOT count towards the six-year maximum. For example, let’s say a worker is in the U.S. with an H-1B visa and his wife is in the U.S. with an H-4 visa. The couple lives in the U.S. for four years. If, after four years, the wife decides to change status to H-1B, she is entitled to the full six years of H-1B status. Her time in H-4 status does not impact her H-1B maximum.
Exceptions to the Six-Year Maximum
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 the visa 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. You can find out which priority dates are current by reading the U.S. Department of State’s monthly Visa Bulletin, available here: http://www.travel.state.gov/visa/bulletin/bulletin_1360.html
For example, let’s say your six years of H-1B status will end on August 1, 2012, and you are a Mexican national with an approved I-140 in the EB-2 category. Your priority date is December 1, 2011. Per the August 2012 Department of State Visa Bulletin, the priority date for your category is January 1, 2009. 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 you will begin your sixth year of H-1B status on September 1, 2012. As long as a U.S. employer filed a PERM or I-140 on your behalf PRIOR to September 1, 2012, and the application is still pending, you are eligible to extend your H-1B status for one year.
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, fifteen, or twenty 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.