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Can I extend my H1B status beyond 6 years if my EB-2 NIW petition is approved?

Yes, if you are in the United States on an H1B visa and you are approaching the end of your 6-year maximum, you can extend your H1B status beyond the 6 years limit if you have an approved I-140 petition and your priority date is not current, and this includes self-petitions under the EB-2 NIW (National Interest Waiver) category.

In other words, if a H1B holder is the principal beneficiary of an approved immigrant visa petition, but if they cannot file an adjustment of status petition because the priority dates are backlogged for that category, they can extend their H1B status beyond 6 years until the priority dates become current.  At that point, the applicant can move forward to adjust status to a green card holder.

This is because of the regulations originating from the American Competitiveness in the 21st Century Act (AC21), which allows for an exemption from the 6-year H-1B limit in two scenarios. The first is the “lengthy delay” scenario, where either a labor certification or immigrant visa petition has been filed but have been pending for at least 1 year. 8 CFR 214.2(h)(13)(iii)(D).  The second is the “backlogged priority dates” scenario, where a foreign national is approved for an employment based immigrant petition but cannot file for a green card because the priority dates are not current for their category. 8 CFR 214.2(h)(13)(iii)(E).

Note that H-1B extensions based on a “lengthy delay” are granted in one-year increments, while H-1B extensions based on “backlogged priority dates” are granted in three-year increments. To be eligible for the three-year extension, the priority dates must not be current at the time the applicant files their H-1B extension petition.

See also:  My H-1B 6-year period is up. What can I do to stay in the U.S.?

To learn more about the criteria for EB-2 NIW, click here.

To learn more about H1B extensions and transfers, click here.

To learn more about priority dates and retrogression, click here.

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