San Francisco Immigration Lawyer Q & A: Extending H-1Bs beyond six years by filing labor certification (PERM) applications 365 days prior to reaching the 6 year H-1B limit

Question: My current H-1B visa expires in 1/16/2013. My Company laid off employees this month in my category and so cannot file my PERM before Mar-Apr 2012. I need to know whether I will fall in the "365 days" for H-1B Visa extension when I apply for PERM by Mar-April 2012?? Since I first entered the US in H-1B status in March 2007, I approximately 1.5 years in F-1 and F-2 status. Does this period count towards H-1B 6years clock?

Answer: As you know, an H-1B worker may extend his or her status in one-year increments beyond the 6-year limitation if a labor certification has been filed at least 365 days prior to reaching the six year limit. Also, an H-1B worker may extend his or her H-1B status in three-year increments beyond the 6-year limitation if he/she is the beneficiary of an approved first, second, or third preference employment-based (I-140) petition, but subject to per country limitations (in other words, I-140 approved, but due to per country limitations, is unable to file for or obtain his or her immigrant visa).

When conducting related analysis, it is critical to have the actual documents to accurately establish the foreign workers six year max date [also referred to as a Final Nonimmigrant Visa or FNIV date]. As you know, any time during this six year period which is spent outside of the US or in another temporary status, may be “re-captured” or essentially, added to the six year limit.

In your situation, based on your representations, it sounds like you should be in good shape to meet the 365 day deadline [commonly referred to as the “AC-21 deadline”] IF the company files a PERM for you on by March/April 2012.

Here is how the analysis works. If your first began H-1B status was March 2007, your six year limit is March 2013. However, if you spend 1.5 years either outside of the US or in F-1 status, you can file another I-129 asking USCIS to re-capture the 1.5 years, effectively extending your six year limit to August 2014.

So, if your FNIV date is August 2014, then you need to get a labor certification (PERM) application filed no later than August 2013 – in order to establish eligibility to seek one-year extension of H-1B status beyond the six year limit.

Notably, once the PERM is approved, you immediately file an I-140, which can be expedited. With an approved I-140, assuming you are not current [subject to per country limitations] you may seek three-year extension of your H-1B status for as long as your green card case is pending.

Critical steps for you are to get your immigration timeline in place with supporting evidence to make sure you can document the time spent in another status or outside the US, to ensure that your request to re-capture time [extending your FNIV date to 8/2014 or thereabouts] is approved.

Then of course, you should also work with the new company’s immigration counsel to move forward on your labor certification application asap.

Good luck and please let me know if I may be of further assistance.

Michael Ryvin, Partner
Ryvin Wallace Group
1-415-765-0679
michael@ryvinlaw.com