What is the best strategy to approach my 7th-year visa extension in accordance with USCIS regulations?
If your fifth year is nearing an end on your H-1B visa, and you have no labor certification application or immigrant petition pending, you must file an application. If your employer will cooperate with a labor certification application, the best strategy is to file a labor certification application promptly. If no employer is willing to file a labor certification application for you, look at the possibility of filing a self-sponsored extraordinary ability or national interest waiver petition. Even if the petition is ultimately not approved, the filing of the petition (presuming it is non-frivolous) may allow you to obtain the benefit of a seventh-year extension. This would enable you to utilize the sixth-year to find an employer willing to file a labor certification application on your behalf. If you need help in extending your stay in the U.S. on your H visa, please call or email our experienced immigration attorneys at JCS Immigration and Visa Services.
Do I have to be the beneficiary of an approved immigrant petition in order to qualify for extension of H-1B status beyond the 6 year limit?
Yes. Consistent with prior USCIS guidance on this subject, an approved petition is required in order for you to qualify for an extension of H-1B status beyond the 6-year limit under INA regulations.
If I qualify for an extension past the 6 year H-1B visa limit, will an extension be granted to me for a period of up to three years?
Yes, provided the petition requested three years extension time, includes a Labor Condition Application (LCA) covering such a time period. As with all USCIS applications, you must make certain that all of the other H-1B statutory and regulatory requirements are satisfied.
If I qualify for an extension past the H-1B 6 year limit, is it possible that will USCIS grant more than one extension to me?
Yes. The visa process may take time. USCIS recognizes this and accepts that in some cases, it may take more than three years for the noncitizen to be eligible to adjust his or her status. This is often because of visa limitations based on country of origin. This means that even though the statute covering this aspect of immigration law states that there is a “one time protection,” a qualifying noncitizen may actually be granted more than one extension under this special provision.
Are H-4 dependents eligible for an extension beyond the 6 year limit?
Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal H-1B visa holder’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension. An extension application is required by USCIS.
Would it be beneficial for my employer to withdraw or terminate my petition and refile a new H-1B petition?
Refiling a petition is another means for extending your H-1B visa. Your employer could terminate the approved H-1B petition and file a new H-1B petition to enable you to return to the U.S. in H-1B status for the remaining months available before the end of the six years. By doing so, when the six-year limit is reached, you will be eligible to extend H-1B status because the application or petition will at that time have been pending for one year.
Should I leave the United States for a few months before the six-year period of my H-1B visa ends?
If your labor certification application or immigrant petition will not have been pending for 365 days by the expiration of your sixth year extension, another strategy to consider is leaving the United States for a number of months before the six-year period ends. Upon return, you could apply to recapture the time spent out of the U.S. Our immigration lawyers represent clients in complying with the complex immigration requirements of the United States Citizenship & Immigration Service, Department of Labor and Department of State to obtain benefits for you and the results you need.
For your free consultation, call or email our Los Angeles immigration attorneys now.