Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

What Happens when the Permanent Residence Process will take longer than the time left on the Non-immigrant Visa?

Q: What happens if I run out of time on my nonimmigrant visa and the green card process is not yet done?

A: First, the permanent residence case doesn't need to be completely done for the foreign national to be essentially "safe" here - to be able to remain in the U.S. and continue employment.

While the labor certification (if applicable) and the I-140 Immigrant Visa Petition do not convey any legal status or right to work or travel, the filing of the I-485 Application to Adjust Status to Permanent Residence does convey a form of legal protection as long as filed while the foreign national was still maintaining status. The Adjustment of Status application can be filed along with applications for an Employment Authorization Document or "EAD" and for an Advance Parole document for travel authorization - both of which are normally approved within a period of several months from filing.

Once these are approved the foreign national can remain here, work, and travel just as they would under a nonimmigrant H1B or L-1 visa even if these visas are no longer valid. So, if the foreign national can get as far as filing the final stage of the process - the I-485 - he or she can generally remain in the U.S. and get authorization to continue work.

However, in many cases the foreign national will not yet have reached the I-485 stage of the case - either because earlier stage(s) have not yet been completed or because an immigrant visa is not yet immediately available.

There are several possible ways an individual can usually stay here with a labor certification (or even an I-140 Immigrant Visa Petition) pending beyond the maximum time allowed by their nonimmigrant visa.

First, time spent abroad may be "recaptured" - we can ask U.S. Citizenship and Immigration Services for the time back, added to the end of the initial six calendar years of H-1B time.

An individual in L-1B status, which allows for five years of stay in the US, may be eligible to change status to H-1B, which allows six years of authorized stay thus gaining an additional year (please consult the FAQs on H-1B status for eligibility requirements).

There are circumstances where an individual in H-1B status can extend that status beyond the allowable six years of authorized stay where a permanent residence case is underway, but has not yet reached a stage where it offers independent protection of the ability to remain in the US.

If the reason why the foreign national has not yet reached the Adjustment of Status phase concerns only delays in the processing of the labor certification and/or the Immigrant Visa Petition (a common scenario for those who either started the process late in their six-year H-1B period, or those whose PERM case is under audit), these extensions are only for one year at a time - i.e.: a seventh year, and then an eighth year, etc - but such extensions can be obtained indefinitely as long as the labor certification was filed in time and the I-485 Application to Adjust Status to Permanent Residence cannot yet be filed. This type of post-sixth-year H-1B extension requires that the PERM labor certification was filed before the end of the fifth year of H-1B time – 365 days or more in advance of the end of the six years, inclusive of any recapture time. It is therefore beneficial that the labor certification be filed early in the period of non-immigrant stay, not only to get the process started but also to ensure eligibility for extensions beyond the sixth year in H-1B status.

If the reason the H-1B foreign national has not yet reached the Adjustment of Status phase of the case is the unavailability of an immigrant visa number rather than delay in processing the earlier stages, it is likewise possible to extend the H-1B beyond the end of the sixth year. Here, a full three additional years of H-1B status may be requested rather than simply one year at a time.

Finally, if for some reason none of the above possibilities apply, we can look into whether some other non-immigrant visa status might be appropriate. In many cases, for instance, the O-1 non-immigrant visa for individuals of extraordinary ability may be attainable.



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The above is presented for informational purposes only, and does not constitute legal advice or create an attorney-client relationship with our firm. The information provided should not be used as guidance in pursuing an immigration matter absent consultation with a qualified immigration attorney.