Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

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New York, NY 10004

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H-1B Allowable Time FAQ (How Long Do I Get on an H-1B?)

Q: How long can I remain in the U.S. in H-1B status?

A: While the base period of time permitted in H-1B status is six years (in increments of up to three years at a time), in some circumstances a longer total period of H-1B stay is permitted.

Q: What counts as the initial six-year period - is it simply six calendar years from when the first H-1B Approval began?

A: No - in fact, when we speak of the "initial six years," we may in fact mean a period of time that spans much longer than six calendar years.

Only time spent in the U.S. in H-1B status counts towards the six years - time spent abroad during that time can be "recaptured" - added on to the end. It is still considered part of the initial six years; an important consideration as we shall see for post-sixth-year H-1B extensions. See our FAQ on H-1B Recapture Time.

Q: In what circumstances can I get more than six years in H-1B status?

A: There are two circumstances where H-1B status can be extended beyond the initially allowable ("natural") six years, both of which are intended to accommodate delays in processing for permanent residence.

The first circumstance involves situations where processing of the case is delayed past the available H-1B time by long government processing queues for an initial PERM labor certification filing with the Department of Labor, or by long USCIS processing of an Immigrant Visa Petition. Where such delays in processing go beyond the initial six-year period of time available, the H-1B foreign national can extend the H-B past the six years in one-year increments - but only if the first permanent residence filing was done at least 365 days in advance of the end of the sixth year.

In other words, the foreign national can receive a seventh year, and then (assuming processing still is not complete) an eight year, and then a ninth year, etc. as long as either a PERM labor certification case or an I-140 case was filed 365 days in advance of the end of the sixth year of H-1B time, inclusive of any time recaptured, and either that PERM Labor Certification or an I-140 Immigrant Visa Petition remains pending.

The second circumstance which allows H-1B extensions beyond the normal six years concerns situations where processing has gone as far as it can (I-140 Immigrant Visa Petition has already been approved, whether or not preceded by a PERM labor certification), but where no immigrant visa is immediately available for employment-based cases of that particular priority date in the preference classification for which the Immigrant Visa Petition has been approved. A detailed explanation of how the priority date and preference classification system works is available here. In these situations, an extension for a full three-year period is available.

Q: If I switch employers before the end of a three-year term in H-1B status and then get a new 3-year H-1B for the new employer, have I given up the remaining time on the first H-1B? Am I only allowed one extension?

A: No. A foreign national is allowed the initial six years in H-1B status no matter what, and can file as many extensions or amendments as needed as long as the total time doesn't exceed six years (or more, if the post-sixth-year exceptions above apply).

For example: a foreign national comes on a three-year H-1B for Company A, but after a year and a half decides to accept a job with Company B. Company B files for a new three-year H-1B. Halfway through the Company B H-1B (after a total of three years of H-1B time have been used by the foreign national), the company switched the foreign national to a job so different from the original H-1B job that an H-1B amendment is required. This amendment is approved for three years.

After one year, the foreign national decides that he does not like this job and accepts a position with Company C. The Company C H-1B is approved for the two remaining years of the six years available to this foreign national. The foreign national has had four different H-1B Approvals, but this is fine since the total time has not exceeded six years.

Q: My spouse has been in the U.S. in H-1B or L-1 status, and I have been in the U.S. with my spouse in H-4 or L-2 derivative ("family of") status. Does my time as an H-4 or L-2 count against my six permissible years in H-1B status if I now wish to take an H-1B job?

A: No, it does not - even someone here for five and a half years in H-4 or L-2 status can get a full six years in H-1B status. The original H-1B spouse may change status to H-4 to remain here with the spouse who now has an H-1B.



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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.