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H-1B Extension Beyond the 6th Year When Your Category is Not Current

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H-1B visa is a non-immigrant visa that permits a company to hire workers in specialty occupations.  This visa category requires that the beneficiary (the foreign worker) have at least a bachelor’s degree.

Generally, the H-1B visa is granted for a period of up to 3 years and can then be extended for another 3 years. If you have not been in the U.S. for the entire period of 6 years, you may be able to file a recapture petition and recapture the time you spent outside the U.S.

Additionally, if you have an I-140 petition approved already under the Eb-1, Eb-2, or Eb-3 green card category, you will be able to extend your H-1B visa status beyond 6 years, if your green card category is not yet current due to the per country limitation. This means that because of the per country limitation, you are not able to file an Adjustment of Status petition/Immigrant Petition at a Consulate abroad.

USCIS may then extend your H-1B status for 3 years and you can keep extending for as long as your green card category is backlogged.

With the H-1B petition, you should submit a copy of the most recent visa bulletin and a copy of your I-140 petition, and highlight the current priority date in the visa bulletin and your priority date on the I-140 approval to make it clear that your category is not current.

Example

You are an Indian national and you have an I-140 petition approved with priority date of November 1, 2018 under the Eb-3 green card category. The current priority date is November 1, 2012. Your 6 years of H-1B status is currently coming up and you are wondering whether you could qualify for the 3 year extension. The answer is yes. Because you are not able to file a green card petition under your category, you could apply for the 3-year H-extension so you can stay B and keep working in the U.S.

Please see our blog post on What is the PERM green card process here.

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