Options When H-1B Time Limit is Reached
H-1B visas are granted for an initial period of up to 3 years. The H-1B visa can then be extended for another 3 years. The normal maximum amount of time that a foreign worker can remain in the U.S. on H-1B status is six years. Once the six year cap is reached, the individual must remain outside the U.S. for 1 full uninterrupted year in order to "reset" the six year clock.
Read more about H-1B and L visa time limits here.
What would enable me to continue working and residing in the United States when my H-1B visa time limit is reached?
When the five, six or seven year limit is reached on your H-1B visa, you may think that you have no options left. However, there are ways in which an H-1B visa holder may still be able to extend his or her stay in the U.S.
Some of these strategies could help you! If you need help in assessing whether you can extend your stay in the U.S. beyond the limit set on your H-1B visa, please call or email our U.S. immigration lawyers. Our experienced Los Angeles immigration attorneys provide a free consultation and respond within 24 hours.
What is the 240 day rule for H-1B visa holders?
If you are working in the U.S. on an H-1B visa, you can utilize the “240 day rule” which allows an individual to continue working for the current employer for up to 240 days after the current H-1B visa expiration. However, this is available to you only if you are waiting for a USCIS decision on a pending application.
Even if your application is not approved, you can continue to work in the United States for up to the 240 days following the end of the five, six, or seven years. If your extension application is filed on or before the last day of the approval period, you are authorized to be employed for up to 240 days while the extension is pending.
If USCIS issues a Request for Evidence requesting additional or other details of your overseas travel or relating to your position with the U.S. company, it is very likely that your application will remain pending for the entire 240 days. Of course, your application must be “non-frivolous,” and should conform to USCIS regulations. Please also note that by staying for the 240 days that your application may be pending, you are not engaging in “unlawful presence” so it does not create illegal time spent in the U.S., even if the extension application is ultimately denied.
There are many intricacies that may make or break your case. It is important to contact an immigration attorney when considering to continue working past the date of the H-1B expiration, and we encourage you to contact our Los Angeles immigration lawyers for a FREE consultation now.
Will USCIS allow me to recapture time spent out of the United States for my H-1B visa?
Your H-1B visa comes with a designated time limit. According to immigration laws, you are only in H-1B status and using that time when you have been lawfully admitted into the United States in that status. When you leave the United States, you are no longer partaking of your H-1B status time in the United States. Each occasion when you travel abroad and reenter lawfully, you exit and re-enter into lawful H-1B status. Essentially, the H-1B time-clock starts upon lawful entry into the U.S., and the clock stops on exit of the U.S., but the clock is counting in days, not hours.
If you went outside the United States during the six years allowed with your valid H-1B visa, you can use those days spent abroad to extend your H-1B visa beyond the 6-year limit. The law allows you to do this because your 6-year time period should equal to 2190 days in the United States, and if you were not in the country for all of those days, you will not have used your H-1B status for a full six years. The time you spent outside the United States may be subtracted from the 6-year calculation, allowing you to recapture those days to effectively extend your 6-year limit.
When can I file my application with USCIS to extend my valid H-1B status?
This recapturing of time is especially important because in some circumstances, the labor certification cannot be filed 365 days prior to the end of the 6-year H-1B validity. In this case, it may be helpful to take a look at whether you have made trips outside of the United States and whether recapturing of those dates prior to the end of the 6-year limit will extend the end date of your H-1B to qualify you for an extension. If you have any questions or concerns about whether this is the right choice for you to extend your stay, please feel free to call or email JCS Immigration and Visa Law Office today.
How can I prove that I was outside of the U.S. so that I can recapture the time not used on my visa status?
Those who wish to recapture the unused H-1B dates must clearly document the H-1B worker’s stay in the U.S. It is highly recommended that any H-1B visa holder keep an accurate list of dates noting each exit and entry and retain evidence such as:
(1) entry and exit stamps in the passport
(2) airplane boarding passes, ticket
(3) frequent flier statement or airline log of flights
(4) credit card charges as evidence of dates of travel abroad
H-1B Visa holders can apply to change status to another U.S. non-immigrant visa
H-1B visa holders who are approaching the expiration of H-1B visa may apply with USCIS for a Change of Status application to change status to a different non-immigrant category. An H-1B visa holder has the ability to request a change of status to B-2 Tourist to obtain an additional 6 months of living, but not working, in the United States in order to wrap up affairs and have ample time to move back to his or her home country.
Read more about the Change of Status application here.
I have reached the time limit on my H-1B status but my spouse now qualifies for an H-1B visa. Will USCIS allow me to change to derivative H-4 status at the conclusion of my H-1B period?
The INA statute creates the six year limit for H-1B non-immigrants, but not for H-4 non-immigrants. However, the regulations preclude a change of status for any non-citizen who has been in the United States for the maximum time period to any other H status, presumably including H-4. The argument is that these sections should be trumped by the regulatory sections that allow derivatives to remain in the U.S. for the same length of time as the principals. It is possible that you would be able to stay in the U.S. under the derivative status H-4 visa for as long as your principal H visa holding spouse. If you hold a valid H-1 status, you can leave the United States shortly before the conclusion of your five, six or seven year period
If you then applied for an H-4 visa at the U.S. Consulate, there would not seem to be a statutory or regulatory bar to the issuance of the visa. The relevant regulations would not come into play since you had not spent five, six or seven years in H status; which is the event that triggers the application of the regulation.
For expert legal counsel and aid in navigating this difficult area of law, contact our experienced employment visa attorneys in Los Angeles for a FREE consultation now.
What if an H-4 visa holder wants to change to an H-1B visa after six years?
USCIS policy appears to be opposed to such an application, if the applicant has spent six years in the U.S. as an H-1B. If the applicant is in a status other than H, such as F-1 or J-1, there should be no problem to change to F-2 or J-2 or any other derivative non-immigrant status. Of course, if the change is to J-2, L-2 or E-2, employment authorization is also an option.
Read more about filing a Change of Status application with USCIS.
Changing Status to a Different Employment Based Visa to Stay in the United States
The H visa holder who has spent the maximum time in the U.S. in H status does not necessarily have to leave the U.S. There is no prohibition against changing status to another non-immigrant employment category, such as O-1, TN, E-1 or E-2. However, it is important to note that H-2B and H-3 visas are not options.
Working Outside of the U.S. as a Means for Resetting the Non-immigrant Visa Clock
In some circumstances, it is not possible to continue to work in the United States. In such a case, it may be better to work for the same U.S. company that currently employs you, but perform services outside of the United States for a period of time to “reset” the visa clocks.
The stay outside of the U.S. would need to be for at least one year if you wish to return to the United States in H-1 status. During this time out of the country, you can still enter the United States periodically under a B-1 or B-2 visa for business or tourist visitors. Although such visits to the U.S. do not “restart” the one year period outside of the United States, the days in the United States do not count toward the required one-year period outside the United States.
Of course, you may be paid by your employer in the United States for your services outside of the United States. However, there are unauthorized employment issues that may arise if you continue to be paid during your B-1 visits to the United States. Contact our immigration lawyers now for a free consultation and see how we can help you.