Extending H1B status

If you would like to remain in the United States under the H1B classification, you will need to know if you are eligible, and if so, how and when to renew your existing H1B visa.

The following practical guide for H1B visa-holders examines how to go about extending H1B status using the H1B visa renewal process. We also look briefly at switching from H1B status to an employment-based green card.

 

What are the maximum limits when extending H1B status?

If you are currently working in a specialty occupation role in the United States under H1B classification, this is a nonimmigrant visa allowing you to stay in the USA on a temporary basis only. As a specialty occupation worker, an H1B visa will initially be granted for up to 3 years, although it may be possible for you to extend your stay for a maximum of 6 years.

Equally, if you are performing services in the USA as a fashion model of distinguished merit or ability, known as H1B3 status, you can again apply to extend your H1B3 visa for a maximum of up to 6 years, although much will depend on your contractual commitments.

For the limited few visa-holders who are currently working in the United States in H1B2 classification, performing services of exceptional merit and ability relating to a Department of Defense (DOD) cooperative research and development project, your initial grant of leave will be up to 5 years, but this can be extended for a maximum of up to 10 years.

 

Requirements when extending H1B status

If you are looking to stay in H1B classification beyond the initial period of validity of your visa, you will need to meet the requirements for extending H1B status. This could be where you are employed as an H1B temporary worker and your current authorisation will expire before your job role with your existing employer is expected to end. It could also be where you are looking to switch employers into a new job role under the portability provisions, or change employment terms but stay with the same employer, although any extension of stay in this context will still be subject to the maximum limits for your H1B visa type.

 

Extending H1B status with an existing employer

If you are currently in valid H1B status and will remain employed in a specialty occupation or other qualifying job role with your existing employer, you should be eligible for a visa extension. However, there are key requirements that must still be met, including:

• That you apply prior to expiry of your existing H1B visa, where overstaying may make you ineligible for an H1B visa renewal.
• That you have not reached the maximum limits for extending H1B status.

 

Requirements for extending H1B status with a new employer

If you are currently in valid H1B status but wish to switch to a different employer, you may again be eligible for a visa extension, provided you meet the same requirements as set out above. Your new job role must also satisfy the requirements for H1B classification.

For most H1B visa-holders this will be a job role within a specialty occupation, where this requires highly specialised knowledge, together with a bachelor’s or higher degree (or its equivalent) in the specific specialty as a minimum for entry into the occupation. Most graduate level jobs requiring at least a bachelor’s degree as a minimum entry requirement in the United States will qualify as a “specialty occupation”. However, a fresh determination will need to be made by US Citizenship and Immigration Services (USCIS), not only as to the nature of your proposed new role, but whether you are qualified to perform that role.

Equally, if you are looking to change employment terms but stay with the same employer, your new or revised job role with that employer, and your ability to perform that role, must again meet the requirements for H1B classification to be determined afresh by USCIS.

 

Portability provisions to renew H1B status

As a nonimmigrant currently working in H1B status but looking to change employers in the United States, under the H1B “portability” provisions, you can begin working for a different employer as soon as they properly file a non-frivolous petition for new H1B employment on your behalf, or as of the requested start date on that petition, whichever is later. A “non-frivolous petition” refers simply to a petition that has a reasonable basis in law or fact.

To be eligible for portability, you must not have been employed without authorisation from the time of your last admission into the United States, and your new employer must properly file a new petition before your H1B period of authorised stay expires. If you are eligible for H1B portability, your new employment will be authorised right up until USCIS has made a decision on your petition. If approved, you may then continue working for your new employer for the period of time indicated on approval of the new petition.

If you want to start new employment or change employment terms with your current employer, a petition will again need to be filed by that employer. However, you will be authorised to work according to the terms of the new or changed employment once a non-frivolous petition requesting new employment or a change of employment is properly filed on your behalf, or as of the requested start date on that petition, whichever is later.

 

H1B visa renewal application process

The process for extending H1B status, either with your existing or new employer, or the same employer on different employment terms, is similar to the process when seeking authorisation in H1B classification for the first time. Accordingly, the employer must file a petition on your behalf with USCIS using Form I-129 (Petition for a Nonimmigrant Worker), paying the applicable fee and providing any relevant documentation in support.

If you are continuing to work within the same job role for the same employer, there is unlikely to be any real difficulties when extending H1B status. This is because USCIS will already have made a determination that your employment constitutes a specialty occupation, or other qualifying job role within H1B classification, and that you are qualified to perform those services for your H1B visa type. However, if you are switching employers and your new employer is filing a fresh petition on your behalf, or you are starting new employment or changing employment terms with your current employer, USCIS must revisit these H1B visa requirements to make a fresh determination for which there will need to be adequate documentation to satisfy all the relevant requirements.

 

Costs to extend H1B status

The cost to file Form I-129 (Petition for Nonimmigrant Worker) is $460. There may also be additional costs to the employer, including a $500 Fraud Prevention and Detection Fee.

 

When should you file your H1B visa renewal application?

The H1B visa renewal process may be initiated no earlier than 6 months before the expiration of your existing authorisation and no later than the last day of your current H1B status. Your paper or electronic I-94 (Arrival/Departure Record) should indicate your date of entry to the United States, as well as the date by which you will be required to leave, where the departure date should match the end date on your initial Form I-797.

However, once your I-129 petition has been received and receipted by USCIS, and your employer is in possession of a Form I-797C Notice of Receipt, your H1B employment authorisation will be considered automatically extended for a grace period of 240 days while USCIS reviews that petition. This temporary extension should allow you to remain in the United States and continue your employment until a decision has been received.

In cases where an extension of H1B status is sought on your behalf by a new employer, a petition can be filed at any time, provided this is prior to expiry of your existing H1B visa.

 

How long does it take to renew H1B status?

USCIS processing times for H1B extensions can vary from as little as 2 months, to as long as 8 months, where it is strongly recommended that you do not travel overseas during this period. However, for an additional $2,500 fee, it may be possible to pay for premium processing to expedite the review of your petition to 15 days. Once USCIS approves your petition, they will send an approval notice using Form I-797, indicating the dates of your renewal, where you will need this to update your I-9 Employment Eligibility Verification.

Importantly, if you plan to travel overseas after your H1B extension is approved, you may need to apply for a new H1B entry visa at a US consulate. The USCIS extension approval will only extend your ability to stay in the United States and continue your employment, where you must still obtain a valid visa in order to return from any international travel.

 

New domestic H1B visa renewal pilot scheme

On 21 December 2023, the United States Department of State (DOS) published a notice detailing the implementation of domestic visa renewals through a limited pilot program. This program allows certain eligible applicants to renew an H1B visa in the United States without needing to travel abroad to an American consulate. The pilot program will be in effect from 29 January 2024 through to 1 April 2024, and will be limited to a total of 20,000 H1B visa applications. Applicants must file the Form DS-160 nonimmigrant visa application online and begin the process at a dedicated DOS domestic renewal website.

However, the pilot is limited to certain H1B visa applicants whose previous visa was issued by Mission Canada or Mission India in a certain time interval, among other requirements.

 

What happens if your petition for an H1B extension is denied?

If your petition for an H1B extension is denied, you will no longer be eligible to continue working in the United States after the expiration of your current H1B status. You may be able to request a review of that decision or re-apply, or even seek permission within a different classification. However, if you are not successful, you will be required to leave the country. It is therefore important for you and your employer to work with an immigration attorney from the outset, ensuring that the petition is properly prepared and supported by the necessary documentation, in this way maximising the chances of a successful outcome.

In circumstances where you an H1B extension has been sought on your behalf by a new employer, and your I-129 petition is denied, you will no longer be authorised to work for that employer. You may continue working for your previous employer if your prior period of authorised employment is still valid, but your authorisation to work based on portability will cease. If you have been laid off, fired, quit or otherwise ceased employment with your previous employer, you may have up to 60 days or until the end of your authorised validity period, whichever is shorter, to find new employment, change status or depart the country.

 

When can you apply for a green card with H1B status?

The most you can usually stay in the United States as a speciality occupation worker on an H1B visa is 6 years. However, as a dual-intent visa, you may be eligible to apply for an immigrant visa, also known as a green card, on the basis of your US-based employment.

An immigrant petition using Form I-140 (Immigrant Petition for Alien Workers) can be filed by your employer at any time, provided you meet the relevant requirements for a green card. You would then need to apply for an immigrant visa using Form I-485 (Application to Register Permanent Residence or Adjust Status). In cases where a decision on your I-140 petition is delayed, or you are the beneficiary of an approved petition but unable to adjust your status due to unavailability of visa numbers, you may also be eligible for an H1B visa extension beyond the maximum 6-year limit in H1B classification.

Need assistance?

NNU Immigratiom are US immigration specialists. Our attorneys are on hand to provide expert advice and guidance to employers and individuals through the US visa application process, including the H1B route. Contact us to discuss your application.

 

Extending H1B Status FAQs

Can H-1B visa be renewed?

As a specialty occupation worker, you will be admitted to the USA for up to 3 years, where it is possible to renew your H-1B visa up to 6 years, provided you continue to work within a qualifying specialty occupation.

 

How do I renew my H-1B visa after 3 years?

To renew your H-1B visa after 3 years, your employer will need to file a fresh petition with US Citizenship and Immigration Services, together with evidence that you continue to work within a specialty occupation and meet the other requirements.

 

Can H-1B be renewed after 6 years?

There are only limited circumstances in which an H-1B visa can be renewed after 6 years, including where an employment-based petition has been filed on your behalf for a green card, but a decision on that petition has been delayed.

 

Can I renew my H-1B visa stamp before it expires?

You can renew your H-1B visa stamp before it expires, although you must have an approved petition from US Citizenship and Immigration Services to be be able to apply for a visa and re-enter the United States in H-1B classification.

This article does not constitute direct legal advice and is for informational purposes only.