"Creating" 365 days for H-1B extensions beyond 6 years
This post is targeted to H-1B workers who are waiting for a PERM approval or I-140 approval and want to qualify for H-1B time beyond 6 years.
An H-1B worker is limited to 6 consecutive years of H-1B time. That is the ‘natural’ limit of someone in H-1B status. And the 6 year limit is cumulative of employers, so if you work for employer A for 2 years, and then you move to employer B, you are permitted to work for employer B for 4 more years.
Because of the limited number of people who can obtain green cards each year through employer sponsorship, many people end up needing more than 6 years of H-1B time. This issue has traditionally been a big issue for people born in India or China but due to the cut-off dates in the Visa Bulletin for all nationalities, it will become an increasingly big issue for all nationalities.
Thankfully, there are a couple ways to get H-1B time beyond 6 years.
The first way to qualify for H-1B time beyond six years is to get an approved PERM labor certification application and approved I-140 — or approved I-140 alone if you are PERM-exempt.
Then, with the approved I-140 (either PERM-based or PERM-exempt), you document that your priority date is not current, then you can qualify for an H-1B extension for 3 years. This is the cleanest way to qualify for H-1B extensions beyond 6 years.
So the best option for H-1B time beyond six years is a 3-year extension based on approved I-140 and priority date not current.
The second best way to qualify for H-1B time beyond six years is to establish a priority date and then have 365 days pass from when you establish a priority date. If you can show that 365+ days have passed from when you have established a priority date, you can qualify for additional H-1B time beyond 6 years, but you only qualify for an H-1B extension in a 1 year (12 month) increment. So in this “second best” option, your H-1B time beyond 6 years is only for 12 more months, not 36 months (which is available through the “best option.”
In a separate post, I discussed a way that an individual can create a priority date by filing a self-petition EB-2 NIW I-140. This is one way that an individual on his own without an employer can ‘establish a priority date.’ You can read my earlier post here.
A more common way for an H-1B worker to ‘establish a priority date’ is for an employer to file a PERM application and the date the PERM application is filed establishes your priority date.
So let’s say your “max out” date (6 years of H-1B time) is October 1, 2023.
And let’s say that your employer files a PERM application for you on September 15, 2022.
The PERM application and priority date established clearly more than 365 days from the max-out date.
In this situation you should be eligible for an H-1B extension beyond 6 years provided that the PERM application for you is still pending, or the I-140 petition for you is still pending when you seek your extension in spring or summer 2023.
Of course, if the employer files the PERM application for you on September 15, 2022, your hope is that the PERM is approved and I-140 is approved and if your priority date is not current, then you can get a 3-year extension based on “the best option” mentioned above.
But if your PERM is still pending (for whatever reason), or I-140 is still pending (for whatever reason), or even if the I-140 for you was denied and on appeal to the Administrative Appeals Office, and you can document 365 days from the date you established a priority date — then you can get an H-1B extension for 12 months through what I am calling the “second best option.”
But let’s consider another scenario:
Let’s say your “max out” date (6 years of H-1B time) is again October 1, 2023.
And let’s say in this new situation that your employer files a PERM application for you on November 15, 2022.
The PERM for you was NOT filed over 365 days from your max-out date. Thus, you will NOT be eligible for an H-1B extension beyond 6 years because there is no way for the PERM and I-140 to be pending 365 days when you reach your max-out date. THIS IS A PROBLEM!
Yet - more and more employers are struggling to file PERM applications and create the 365 days and more and more PERM and I-140s are slow to process, so people in H-1B time are running out of time. What can be done?
The Importance of Recapture!
One somewhat obscure way to “create” 365 days in a situation where the PERM application for you was filed not more than 365 days from your max-out date is to travel abroad and every day you spend abroad ‘creates’ extra days you can add back. This is based on the principle of Recapture.
So, in the scenario immediately above, where the natural “max out” date is October 1, 2023, and the PERM application was filed on November 15, 2022 —
One possibility is for the H-1B worker to spend 46 days outside the US after the PERM filing in November 2022 to ‘create’ additional days to be recaptured.
If the H-1B worker spent 46 days out of the US, then his max-out date (including recapture) would be November 16, 2023, and therefore the “365 day option” would be available to him.
Because more and more employers are open to WFH (work from home), including possibly WFH from outside the US, it might be viable for the H-1B worker to work abroad for 46 days during that last year of H-1B time.
Further, a possibly important technicality would allow the H-1B worker to go abroad and an H-4 spouse and/or child could stay in the US and then the H-1B worker (by going abroad) would qualify for additional H-1B time through recapture, but even though the H-4 spouse and/or child did not go abroad, they too would qualify for additional H time based on the principal spouse going abroad and ‘creating’ eligibility for the H-1B extension. This strategy could allow the H-4 spouse and/or child to stay in the US and perhaps continue the continuity of school (as an example).
The point of this post is to make people aware of the fact that there are 2 ways to qualify for H-1B extensions beyond 6 years. As a result of slow processing by DOL in PERM (and other factors), more and more H-1B workers are having PERM applications filed for them with less than 365 days remaining in their natural 6 years. In some instances they might be able to ‘create’ 365 days through traveling abroad and utilizing the “recapture” rules.
The “recapture rules” state that for every day you spend outside the US during your H-1B time, you are able to “recapture” those days abroad and add them to your six year limit. So your six year limit is actually a “six years in H-1B status in the US” limit.
This will obviously not help everyone and it is a very niche option but there are people who can benefit from utilizing recapture strategically to get a 7th year of H-1B time while a PERM and/or I-140 are still pending.