How Long Can I Stay in the United States Under the H1B Visa?
Even though the H1B visa is temporary, it nonetheless allows individuals to live in the United States for a fairly lengthy amount of time. H1B visa holders are able to stay in the United States for an initial three (3) years and, under typical circumstances, the visa can be extended after the first three (3) years for an additional three (3) years, totalling up to six (6) years. A petition to extend may be submitted at most 6 months prior to the end of the first three (3) year period.
Keep in mind that temporary foreign workers from Chile or Singapore, who are in the United States under the H1B1 visa, are only eligible to stay in the United States for an initial period of one (1) year, as opposed to the three (3) years permitted for the H1B visa. Similar to the H1B visa, H1B1 visa holders can extend their visa, but only for a period one (1) year.
What is the Process to Extend the H1B Visa Beyond Three Years?
The process to extend the H1B visa is quite similar to the process the H1B visa holder and his or her employer went through to initially apply for the H1B visa. A major difference to the extension process is that the H1B visa holder and the employer do not have to go through the H1B visa lottery process in order to receive an extension.
Step One: Employer Files Labor Condition Application (LCA)
Similar to the regular H1B process, the H1B visa holder’s employer must first file a Labor Condition Application with the U.S. Department of Labor on the applicant’s behalf in order to begin the extension application process. The LCA requires the employer to show that it will treat the H1B visa holder the same as other qualified workers in its same geographic area with regard to wage, and that other employees will be unaffected by the H1B visa holder’s working conditions.
Step Two: Employer Files Form I-129, Petition for a Nonimmigrant Worker
After the Labor Condition Application is certified by the Department of Labor, the H1B visa holder’s employer must then complete a Form I-129, Petition for a Nonimmigrant Worker to the USCIS. While the Form I-129 petition is processing, the USCIS will send the foreign worker and their employer a receipt, which allows the foreign worker to work for the new employer while the USCIS reviews the Form I-129 petition.
Once the Form I-129 is approved, the foreign worker and the employer will receive a new Form I-797, which proves the foreign worker is approved to legally continue work for the new employer for the extension period. It is generally advised that the H1B foreign worker waits to receive Form I-797 to begin working with the new employer instead of beginning work based on the receipt of the Form I-129. This is because the Form I-129 may end up being denied, in which case the H1B foreign worker risks being out of status for not having a U.S. employer.
When submitting Form I-129, the foreign worker must provide the USCIS with certain documentation, including:
- Valid passport;
- Copy of current H1B visa stamp;
- Job description of employment;
- A copy of job offer letter from employer;
- Recent financial statements from employer;
- A copy of employer’s Articles of Incorporation, as applicable;
- A copy of marketing materials from employer;
- Evidence of employment, such as a copy of recent pay stubs;
- A copy of Form I-94; ;
- A copy of your approved form I-129 and I-797 approval (issued to you previously when your form I-129 application was approved);
- Receipts proving you paid your application fees;
- A passport-sized photo of you that conforms with the U.S. Department of State guidelines;
- Degree, certification, and licensure documents;
- Updated Resume and curriculum vitae (CV).
Is it Possible to Extend the H1B Visa for More than Six Years?
It is possible that H1B visa holders can stay longer than six (6) years in the U.S. if they have filed for an employment-based immigrant visa using Form I-140, Immigrant Petition for Alien Workers or a PERM Labor Certification Application (LCA) with the United States Citizenship and Immigration Services (USCIS) 365 days prior to the completion of the usual six (6) year limit. The H1B visa can be extended from that point on a yearly basis.
This means that the H1B visa can be extended for one (1) year increments if the H1B visa holder has been waiting for at least a year for their employment-based immigrant visa petition or PERM LCA to be approved by the USCIS. The H1B visa can be renewed in one (1) year increments until the immigrant
Additionally, an H1B visa holder may also extend their visa if they are applying for an immigrant visa and have an approved Form I-140, but are waiting for their priority date to become current in order to file Form I-485, Application to Register Permanent Residence or Adjust Status. H1B visa holders in this situation may have their visa extended in three (3) year intervals until their priority date becomes current, their Form I-485 is approved, and they are issued an immigrant visa.
What if I am Waiting on a Family-Based Immigrant Visa Petition?
Unfortunately, H1B visa holders who are applying for a family-based immigrant visa are not eligible to extend their H1B visa beyond six (6) years even if they have been waiting for their family-based immigrant visa petition to be approved for 365 days. The H1B visa extension of beyond six (6) years due to a wait for an immigrant visa petition only applies to employment-based petitions.
Can My Family Continue Working During an Extension?
Yes. Family members who have joined an H1B visa holder in the United States under the H4 visa, and are eligible to work in the United States with a valid Employment Authorization Document (EAD) can have their EAD extended while the H1B visa holder waits for their priority date for their employment-based immigrant visa application to become current. Keep in mind that the H4 visa is a secondary visa tied to the validity and approval of the H1B visa. Thus, the H4 visa’s validity is generally extended in accordance with the H1B visa’s validity.
What Fees and Costs are Associated with H1B Visa Extension?
The costs and fees that are required to be paid for H1B visa extension resemble the fees and costs for the initial H1B visa application.
Costs and Fees That Don’t Apply
As mentioned above, registration for the H1B lottery is not necessary when transferring to a new employer. Thus, the $10 lottery registration fee is not necessary. Similarly, costs associated with attending a U.S. Consulate or Embassy interview will not need to be paid because the foreign worker is already in the United States and already has the H1B visa.
Basic Filing Fee for Form I-129, Petition for Nonimmigrant Worker
Any time the Form I-129 is filed, it must be accompanied with a $460 filing fee. The new employer must complete a Form I-129, Petition for a Nonimmigrant Worker after the applicant is selected in the lottery. The $460 fee must also be paid for H1B transfer costs, refiling, amendments, and renewals. The new employer is responsible for paying the filing fee.
American Competitiveness and Workforce Improvement Act Training Fee
Employers with 1-25 full time employees must pay $750 under this act, while employers with 26 or more full time employees must pay $1,500. Nonprofits affiliated with educational institutions, government research organizations, and primary or secondary educational institutions are exempt from this fee.
Fraud Prevention and Detection Fee
New H1B applicants or those changing to a new employer are charged $500 so that the USCIS can better detect fraudulent use of the H1B visa. This fee is not charged if an employee is extending his or her work with the same sponsoring employer.
Public Law 114-113 Fee
This is a $4,000 fee charged to companies that employ more than 50 workers where over half of the employees are on H1B or L1 status. The USCIS may exempt this fee.
Optional Premium Processing Fee
Premium processing speeds up the time it takes the USCIS to come to its decision regarding an applicant’s petition. This is an optional $2,500 fee charged to those who wish to expedite the transfer process. It may be paid by either the employee or the employer. Payment of this fee and completion of form I-907 guarantees a 15-day processing time.
