H-1B

Length of Authorized H-1B Stay

The maximum period of H-1B stay is six years, regardless of the number of employers involved. After six years, an individual in H-1B status must depart the U.S. for at least one year before he/she can reenter and begin a new period of H-1B employment. The initial period of H-1B employment cannot exceed three years. At the end of the initial three-year period, an extension can be requested for up to an additional three years.

An employer is not required to offer H-1B employment for a specified length of time. Obviously, funding should be a primary consideration when requesting a proposed period of H-1B employment. Due to the cost and length of time involved in filing an H-1B petition, H-1B sponsors at UMMC should consider requesting the 3-year maximum period of initial employment unless there is a certainty that funding will be available for less than three years.

H-1B authorization beyond the usual six-year maximum is possible under the following circumstances:

  • A labor certification (the first step in the EB-2 permanent residence process) has been filed with USCIS on the H-1B employee’s behalf and has been pending for at least 365 days. To ensure that the labor cert will have been pending for the 365 day period, it must be filed before the end of the employee’s fifth year of H-1B employment. (1-year extension available)
  • An immigrant petition (Form I-140) has been filed with USCIS on behalf of the H-1B employee and has been pending for at least 365 days. (1-year extension available)
  • An immigrant petition (Form I-140) has been filed with USCIS on behalf of the employee and has been approved; however, due to unavailability of immigrant visas for individuals from that particular country, the employee is unable to proceed with the filing of the Form I-485 adjustment of status application. (3-year extension available)

Periods of time that the H-1B worker spends outside of the U.S. are not counted toward the maximum six-year limit and can be recaptured. Time spent outside the U.S. can be verified from documentation such as arrival/departure stamps in the employee’s passport or copies of flight itineraries.

Extension of H-1B employment authorization

Extensions of stay can be requested for up to a maximum of 3 years, but there is no minimum amount of time that the H-1B authorization must be extended. As is the case with an initial H-1B request, funding should be a consideration when determining the length of time requested for an H-1B extension.

The procedure for requesting an extension of stay is basically identical to filing a new petition but not as much documentation is required for the extension. Extension requests may be filed up to six (6) months in advance of the employee’s current expiration date.