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

A woman considering her options and questions or ideas

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 a bachelor’s degree, and the petitioner (the U.S. company) can employ the worker for up to six years. But what happens after the 6-year period is up? Can you extend your H-1b visa, do you need to switch into a different visa category, or can the employer sponsor you for a green card?

1. You can recapture any time you spent outside the U.S. while you were in the U.S. on an H-1b status

You can recapture any time (24 hours or more) you spent outside the U.S. while on your H-1b status. The employer would be filling what is called a recapture petition with USCIS, and if you spent a substantial amount of time abroad, this could extend your stay in the U.S. on an H-1b status significantly.

2. You can switch to another non-immigrant visa category

You could ask the employer to sponsor you for another non-immigrant visa category (e.g. TN, E-3, or E-2 employees visa). Many foreign workers prefer to stay in the H-1b category though as it has certain benefits once the employer starts the PERM green card process (see for example bullet point 4 in this blog post).

3. Stay outside the U.S for 1 year, go through the cap process again, and you can get a new 6-year period

If you stay outside the U.S. for 1 full year after your H-1b time is up, and your H-1b registration is selected in the H-1b cap again, your U.S. employer could sponsor you for an H-1b again and you could get a new H-1b visa for additional 6 years. The risky part is that you don’t know whether or not your H-1b registration will be selected in the lottery.

4. If your U.S. employer is sponsoring you for a green card, your H-1b status can be extended in one-year increments

If your Labor Certification or your I-140 have been pending for more than 365 days and you are in an H-1b status, your employer could ask for 1 year extension of your H-1b status (and keep asking for the extensions as long as your Labor Certification or I-140 are pending). This would allow you to stay in the U.S. until the employment green card process is finalized.

Please note that if you have an approved I-140 but you are not able to adjust your status due to per country limitations, your H-1b could be extended in 3 year increments.

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