Extending H-1B Status Beyond 6 Years Using Approved I-140

The H-1B visa allows skilled professionals to work in the United States for up to six years. Many applicants in fields like technology, healthcare, engineering, and research often reach this limit while waiting for green card processing through employment-based categories.

For the H-1B holders with an approved Form I-140 (Immigrant Petition for Alien Worker), extensions are available to continue working legally in the United States beyond the six-year limit, offering more stability during the green card process.

Understanding how the H-1B status extension works helps maintain work authorization and supports long-term career plans in the United States.

Key Takeaways:

• How an approved I-140 petition creates eligibility for extensions beyond the standard H-1B six-year limit.
• The differences between three-year and one-year extension options, and which requirements apply to each.
• Strategies for maintaining I-140 petition validity, especially during employer changes.
• How to handle common challenges, including processing delays and priority date movements.

Why H-1B Extensions Matter?

Reaching the six-year limit on H-1B status does not always mean work authorization must end. Many applicants can continue waiting for their green card approval due to long processing times and backlogs in certain employment-based categories.

Here are some key reasons why H-1B extensions are important:

• Maintains Legal Work Authorization: Continue working in the United States without interruption while the green card process is pending.
• Avoids Gaps in Employment: Stay employed with the current sponsor and avoid disruptions caused by visa expiration.
• Supports Green Card Processing Timeline: You can align your work status with the green card priority date without leaving the country.
• Provides Stability for Employers and Workers: Allows companies to retain skilled professionals who are critical to ongoing projects and operations.

Eligibility Criteria for H-1B Extension with an Approved I-140

H-1B visa holders approaching the six-year limit have options to extend their status if they're in the process of seeking permanent residency.

Under the American Competitiveness in the 21st Century Act (AC21), certain H-1B workers can get extensions beyond the six-year maximum if they meet specific milestones in the green card process, such as having an approved I-140 petition. This law helps them remain in the U.S. while waiting for their green card to become available. 

These extension provisions primarily benefit professionals from countries facing visa backlogs. For instance, software engineers from India may wait 5 to 10+ years for their green card priority dates to become current.

Priority dates show a person's place in the green card queue. The date is set when either the labor certification (PERM) is filed with the Department of Labor or when the I-140 petition is filed with USCIS, depending on whether the category requires labor certification.

To qualify for an H-1B extension beyond six years with an approved I-140, you must meet one of these conditions:

• Approved I-140 with Visa Limitations: You have an approved I-140 petition, but cannot file for adjustment of status or obtain an immigrant visa because priority dates are not current due to per-country visa limitations. For example, an Indian software engineer with an approved EB-2 I-140 will still need to wait several years before their priority date becomes current.
• Pending I-140 or Labor Certification (365 Days Rule) - You have a pending or approved I-140 petition (or PERM labor certification) filed at least 365 days before reaching the six-year H-1B limit.

Three-Year Extension using Approved I-140

A three-year extension of H-1B status is available for workers who meet the following criteria:

• Valid I-140 (Immigrant Petition for Alien Worker) Approval - Have an approved I-140 petition in the EB-1, EB-2, or EB-3 category.
• Priority Date Not Current - Cannot apply for permanent residency because an immigrant visa number is not available (their priority date is not current).

For this three-year extension, your employer must show that a visa number wasn't available to you at the time of filing the H-1B extension petition. USCIS checks the Visa Bulletin that was in effect when your extension petition was filed.

Here's what you need to know about these three-year AC-21 extensions:

• Multiple Extensions Possible - They can be granted multiple times as long as you remain eligible.
• Duration Flexibility - Each extension can be for up to three years (though USCIS may grant less).
• Job Offer Requirement - You must maintain a valid job offer from the petitioning employer.
• Timing Requirement - Your employer must file Form I-129 (Petition for Nonimmigrant Worker) on your behalf before your current H-1B status expires.

Note: The three-year extension provides significant stability during the green card waiting period, allowing you to continue working and living in the U.S. while your priority date becomes current.

One-Year Extension and Other Provisions

Another path exists for H-1B extensions beyond six years. Under this option, you can receive extensions in one-year increments if:

• One-Year Filing Timeline - Your labor certification or I-140 petition was filed at least 365 days before your H-1B max out date (including recapture). 
• PERM or I-140 Pending 365 days - Even if you have already maxed out on your H-1B, you may be eligible for a 1-year H-1B petition once your PERM or I-140 has been pending for at least 365 days.

Unlike the three-year extension, this option doesn't require an approved I-140 petition. A pending labor certification or I-140 petition is sufficient if it meets the 365-day requirement.

Tip: Starting the green card process early, ideally before completing three years in H-1B status, provides maximum flexibility for extensions later on.

For instance, a healthcare professional whose PERM was filed in their fourth year of H-1B status can use this provision to extend their H-1B status one year at a time while waiting for their I-140 approval.

Here are key points about one-year AC-21 extensions:

• Ongoing Eligibility: They can be granted until a decision is made on the adjustment of status application.
• Filing Requirement: An adjustment of status application must be filed within one year of visa availability.
• Eligibility Risk: Failure to file within one year of visa availability may result in ineligibility for further extensions (though exceptions exist).
• Annual Renewal: These extensions are valid for a maximum of one year at a time.

Many H-1B holders qualify for both types of extensions at different stages of their green card process. For example, you might initially use the one-year extension while your I-140 is pending, then switch to a three-year extension once your I-140 is approved, but your priority date isn't current.

Another important provision is "recapture time." Days spent outside the U.S. during your H-1B period don't count toward the six-year limit. Your employer can request to recapture this time, potentially extending your initial six-year period before or in combination with other extension provisions.

Maintaining I-140 Petition Benefits for H-1B Extensions

An approved I-140 petition is valuable for H-1B extensions. However, certain events can affect its validity:

I-140 Withdrawal by Employer

An approved I-140 petition is crucial for extending your H-1B status. However, several events affect its validity, so understanding how to maintain it is essential for long-term work authorization:

• Pre-180 Day Revocation - The petition is revoked by the USCIS if withdrawn by the employer before the I-140 has been approved for 180 days. 
• Post-180 Day Protection - If withdrawn after the I-140 has been approved for 180 days, the petition remains valid for H-1B extension purposes.

Note: Even if revoked, the applicant can keep the priority date, as long as there is no fraud or misrepresentation. This helps preserve the green card process while the category remains backlogged. A new I-140 from a new employer is required to complete the green card or maintain status once the priority date becomes current.

This 180-day protection is crucial. Once your I-140 has been approved for 180 days, you remain eligible for H-1B extensions beyond six years, even if you change employers.

For example, a researcher with an I-140 approved for more than 180 days can change jobs from one university to another while keeping their original priority date, significantly reducing wait time for permanent residency.

Changing Employers and Impact on H-1B Extensions

Changing employers while on H-1B status involves key considerations for your green card and extension options. Here are some essential things to know:

• Protected Job Change - If the I-140 has been approved for more than 180 days, changing employers is possible while keeping eligibility for H-1B extensions.
• Dual Process Benefit - The new employer can file a new I-140 petition while the old I-140 continues to be used for extension purposes.

Tip: When considering a job change, timing is critical. If possible, wait until the I-140 has been approved for at least 180 days to preserve extension eligibility and priority date retention.

Many workers change jobs after securing the 180-day I-140 protection, gaining job flexibility while preserving their place in the green card queue.

Employment Termination and Impact on H-1B Extensions

If your employment is terminated, you generally have a 60-day grace period to find a new H-1B sponsor, file for a change of status, or depart the U.S. During this grace period, you can:

• New Employment - Find a new employer willing to file an H-1B transfer petition.
• Status Change - Change to another status, such as F-1 student (Student Visa) or H-4 dependent (Spouse or Child of H-1B Holder).

Having an approved I-140 that's been valid for more than 180 days gives you more options during this shifting period, as you maintain eligibility for extensions beyond six years with a new employer.

Challenges and Proactive Measures

While the extension provisions offer valuable benefits, H-1B workers seeking extensions face several challenges:

Processing Delays

USCIS processing times fluctuate. Plan ahead by:

• Advance Filing - Filing extension requests well before your current status expires.
• Expedited Processing - Considering premium processing for I-129 petitions when time is critical.
• Time Recovery - Documenting any time outside the U.S. that can be recaptured.
• Documentation Management - Keeping records of all filings and receipts related to your case.

For instance, an IT professional with three international business trips totaling 45 days over their six-year H-1B period can document these trips with I-94 (Arrival/Departure Record) or similar evidence to recapture this time, extending their initial H-1B period before using or in combination with the I-140 based provisions.

Visa Bulletin Movements

Priority date movement in the Visa Bulletin is unpredictable. When planning extensions:

• Monitor the Visa Bulletin monthly.
• Understand the different date charts published in the Visa Bulletin.
• Be prepared for retrogression (backwards movement of dates).
• File for adjustment of status promptly when your date becomes current.

Employment Changes

Changing jobs can complicate extensions. Protect yourself by:

• Understanding the 180-day I-140 portability rule.
• Ensuring new employers are willing to sponsor H-1B transfers and extensions.
• Getting clear documentation when leaving a job.
• Have new petitions filed before the expiration of your status.

Taking proactive measures can help address these challenges and maintain legal status throughout your journey to permanent residency.

With the right support, these potential obstacles become manageable steps in your immigration process.

How Alma can Help With Your H-1B Extensions

Going through the complex process of extending H-1B status beyond six years requires expert guidance. At Alma, we specialize in helping professionals like you maintain legal status while pursuing permanent residency in the United States.

Here's how we can help:

• Our attorneys prepare and file extension petitions with proper documentation.
• We monitor visa availability and time filings strategically for optimal results, with a fast two-week turnaround time on document processing.
• Our experts provide personalized support, guiding you through each step of the process while protecting your I-140 benefits.

At Alma, we understand the stress and uncertainty that come with maintaining status during the green card process. Our services are designed to provide clear guidance, timely filings, and strategic planning. To get started, schedule a free consultation today!

Final Thoughts

Extending H-1B status beyond six years using an approved I-140 petition offers a valuable pathway for foreign workers pursuing permanent residency in the United States.

With proper planning and awareness of different provisions, you can move through the complex immigration system more effectively.

Immigration processes can be overwhelming, especially when balancing career demands and family considerations. Having expert guidance makes a significant difference in achieving successful outcomes.

Alma simplifies each step, from evaluating your extension eligibility to preparing strong petitions that maximize your chances of approval.

Our team of specialists can analyze your situation, explain your options, and help you maintain legal status while pursuing permanent residency. Ready to secure your future in the United States? 

Schedule a free consultation with Alma today!

FAQs

Can I travel internationally while waiting for my H-1 B extension?

Yes, international travel is permitted while an H-1B extension petition is pending provided you are physically in the U.S. on the date the extension is filed and received by USCIS, and you have a valid I-94 for the duration of time spent outside of the U.S.,. Also, a valid H-1B visa stamp remains required for reentry unless qualifying for automatic visa revalidation from certain neighboring countries of the U.S. like Canada and Mexico.

What happens if USCIS denies my I-140 petition after I've already received H-1B extensions?

If USCIS denies an I-140 petition that was the basis for H-1B extensions beyond six years, current status typically remains valid until expiration but future extension requests would be denied unless a new I-140 was approved. 

How does priority date retention work if multiple I-140 petitions are filed?

When multiple I-140 petitions (Immigrant Petition for Alien Worker) are approved, the earliest priority date can be retained even if the first petition is withdrawn or revoked, as long as there is no fraud or misrepresentation. This applies across employment-based preference categories, allowing flexibility when changing jobs.

Can dependents also extend their H-4 status beyond the six-year limit?

H-4 dependents (spouses and unmarried children under 21) can extend their status in line with the principal H-1B holder's extensions beyond six years using Form I-539 (Application to Extend/Change Nonimmigrant Status). H-4 spouses may also qualify for employment authorization if the principal's I-140 petition is approved.

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