EB-2 NIW: The Long Shot Option for Year 5 of H-1B Workers without a Priority Date

More employers and H-1B workers should be thinking about a non-frivolous long shot EB-2 NIW petition to "buy time" to complete PERM. This post explains what I mean.

Nov 07, 2022

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In a recent post, I discussed current trends in EB immigration. One of the current trends is the very slow processing of PERM applications. Most foreign nationals who seek to obtain a green card through employment need to go through the PERM labor certification process.

However, the U.S. Department of Labor (DOL) is processing both 9141 prevailing wage requests and 9089 PERM applications at a record slow pace and there is no indication that things will speed up any time soon. Further complicating PERM is the increase in U.S. employers that are engaged in layoffs or that have imposed hiring freezes. While it is theoretically possible for employers to proceed on PERM in the midst of layoffs and/or hiring freezes, it can be quite complicated as a practical matter to proceed on PERM in those circumstances - for a variety of reasons.

Meanwhile, H-1B workers are only permitted a limited amount of time in the United States and they often do not know what plans their employers have in store. (Frankly, employers often do not know what plans they will have to take in a worsening economy).

This post will explore the merit of a long shot EB-2 NIW petition as a strategy to “buy time”. More H-1B workers should be considering this option.

To be clear, what I am suggesting here is that some people may want to file an EB-2 NIW I-140 petition even if that filing is ultimately denied. The reason for filing an I-140 that might be denied is that by making that filing in a timely way, the EB-2 NIW I-140 while pending may give a person access to a 7th year or even an 8th year of H-1B time and that additional time (year 7 or year 8) may be crucial to get an employer-sponsored PERM-based green card process completed.

I want to be clear that many people in H-1B status are NOT eligible for EB-2 NIW but it is a subjective standard and some people may get approved in a non-frivolous “long shot” filing. The adjudications can be slightly uneven. For some people whose profile does not seem to be eligible for EB-2 NIW, it still might be worth trying for it. Because even if you get denied, the denial of the EB-2 NIW I-140 can be appealed to the Administrative Appeals Office (“AAO”) and while the appeal is pending, you can qualify for additional H-1B time beyond 6 years and that additional time may be crucial to qualify for a PERM-sponsored green card.

An H-1B extension is possible beyond 6 years if you have filed an EB-2 NIW I-140 petition and it has been pending over 365 days, including a denial that is on appeal at the AAO.

I will say this again because it is important and frankly the whole point of this post -

But even if you get denied, the denial of the EB-2 NIW I-140 can be appealed and while the appeal is pending, you can qualify for additional H-1B time beyond 6 years and that additional time may be crucial to qualify for a PERM-sponsored green card.

Before getting into the merits of an EB-2 NIW long shot filing, let’s get into the weeds a bit about H-1Bs -

An H-1B is a temporary work visa and a person in H-1B status is only allowed 6 consecutive years in H-1B status, cumulative of employers. So if an H-1B worker was at Employer A for 2 years, then joins Employer B, he is only permitted 4 years at Employer B to reach his 6 year max-out date.
Also, an H-1B worker’s 6 years of H-1B time is cumulative of prior time in L-1 visa status. So if an employer spent 3.5 years in L-1B status (or L-1A status) at Employer Y, then he would be only permitted 2.5 years in H-1B status at Employer Z.
- NOTE: For additional confusion - if you were in H-4 status with (or without) an H-4 EAD, or in L-2 status (with or without an EAD), your time in H-4 or L-2 does NOT count towards your six year max for H-1Bs. But again, your time in L-1 status DOES COUNT towards the 6 year limit.
When calculating your 6 year “max out” - it is permissible to “recapture” time spent out of the United States and sometimes that time is significant but often it is just a few weeks. What “recapture” means is that if you obtained your H-1B status on October 1, 2017, and your ‘natural’ 6 years of H-1B time would be September 30, 2023, but during your time in H-1B status starting on October 1, 2017, you were abroad for 6 weeks, then you can “recapture” those 6 weeks abroad and add them to the end of your natural limit, to extend your max-out from September 30, 2023, plus 6 weeks.
I use the term “natural six years” to be a simple calculation of when your 6 years ends based on your first day in H-1B status and then your “natural six years plus recapture” are the extra days you get for time spent abroad.
Recapturing time is not really an extension beyond 6 years. It is simply getting your full six years of physical presence in H-1B status. Even though it seems like an extension beyond 6 years, it is really just getting your full six years.

There are two ways to get additional H-1B time beyond 6 years, based on filing for a green card:

For Indian-born and Chinese-born H-1B workers particularly, if they are sponsored for a PERM and an I-140 and are unable to file their I-485 because their priority date is not current, then they can be eligible for H-1B extensions beyond 6 years in 3 year increments. For Indian-born H-1B workers, this extension beyond 6 years is common but importantly it requires both an approved PERM and approved I-140 (at any employer, generally).
Given the slow processing of PERM applications, an employer these days will generally need to start the PERM sponsorship process EARLY in year 4 in order to have enough time to clear the PERM and I-140 process and file an H-1B extension and get the H-1B extension approved beyond the natural 6 years. For a variety of reasons, employers often fail to meet this timeline.
Besides the 3 year H-1B extension (beyond 6 years) available with an approved I-140 and priority date not current, there is a second way to qualify for H-1B extensions beyond six years based on green card sponsorship - this second way only gets you a 1 year (365 day) extension so it is not as good as the 3 year extension option. And for many years, this second way of getting an H-1B extension was rarely used. This second H-1B extension option requires that an employer file a PERM application more than 365 days before the end of the natural max-out (including recapture), or that you file a PERM-exempt I-140 more than 365 days before the end of the natural max-out. The timing issue that arises is that PERM is so slow, particularly just getting the 9141 prevailing wage determination, that many employers fail to file the PERM application within the 5th year of H-1B time, making the candidate ineligible for the 12-month extension based on “365 days pending.”

The rest of this post is going to discuss the possible value of filing a PERM-exempt I-140 (generally an EB-2 NIW petition) more than 365 days before the end of the natural max-out. There is value in this filing EVEN IF the PERM-exempt I-140 petition is denied.

The Non-Frivolous Long Shot EB-2 NIW Petition Filing

Let’s say you got H-1B status approved on October 1, 2017, and your ‘natural’ six year max out is September 30, 2023, and during the period from October 1, 2017, to present, you have been outside the US for 3 months so you will be able to recapture 3 months and get your H-1B extended to January 1, 2024.

Now, let’s say your employer has filed a 9141 prevailing wage request for you but it is still pending and your employer cannot complete the PERM recruitment campaign until the 9141 determination comes through. As a result of the slow 9141 processing, the PERM application for you will not be filed before January 1, 2023.

You don’t know when the PERM application for you will be filed. It might not be filed until March 2023 or April 2023 and meanwhile your max-out date (including recapture) is January 1, 2024.

Because the PERM application for you will not be filed before January 1, 2023, you run the risk of not being able to get H-1B extensions beyond 6 years (including recapture).
The PERM will not be filed by the end of your 5th year so you cannot qualify for the “365 day” H-1B extension, and because PERM processing is slow, you do not know if you will get an approved PERM and I-140 in time to do an H-1B extension.

As the H-1B worker, you likely feel powerless in this situation, just waiting for your employer’s 9141 request to come through and hoping the employer does not have a layoff or hiring freeze which could further delay or suspect the PERM.

One thing you can potentially do, to ‘buy time’ is to file an EB-2 NIW petition.

Now, an EB-2 NIW petition, like any other filing with USCIS, should not be filed for frivolous reasons. There needs to be a good faith basis for proceeding. But the EB-2 NIW category is inherently subjective and recently (earlier in 2022), the Biden Administration issued guidance to promote the use of EB-2 NIW and so the law is not clear as to how USCIS will interpret facts as to who is eligible for EB-2 NIW and who is not.

The following are the big advantages of EB-2 NIW, versus PERM -

An EB-2 NIW petition can be filed as a self-petition, so the foreign national can control the process and timing and is not subject to slow processing or layoffs or other personnel issues at his employer and is not subject to slow processing at DOL for a 9141 prevailing wage request.

An EB-2 NIW petition can be filed very quickly. You control the timing.

If you review the above scenario and your max-out date, including recapture is January 1, 2024, and you realize that your employer will not be able to file the PERM application for you before January 1, 2023; then you could try to get an EB-2 NIW PERM-exempt I-140 filed by December 30, 2022. This filing could make you eligible for the “365 day extension.

How Does the EB-2 NIW Petition Filed in Year 5 of your H-1B Time Benefit You - even if it is Denied?

If you file a self-petition EB-2 NIW I-140 petition and it is approved, the benefits are obvious - you have a priority date locked in and attached to you so if you change H-1B employers, you will not have to do a new PERM/I-140. You have an I-140 that is attached to you.

But even if the self-petition EB-2 NIW I-140 is denied, you can appeal the denial decision and the appeal could take several months to be considered by the AAO. So the initial petition may take several months to be considered. If USCIS feels it is deficient, USCIS will issue a Request for Evidence (“RFE”). You will get several weeks to respond to the RFE, and at least as of the date of this post, you will also get an additional 60 days to respond to the RFE (a special COVID Extension on deadlines).

So that means that even if you file a case that will ultimately be denied, it will be pending several months (including initial filing, RFE response timing with COVID extension, and then USCIS review of the RFE response).

If the I-140 petition is ultimately denied, you can appeal to the Administrative Appeals Office (“AAO”). During this entire time, as long as you have an I-140 pending 365 days - including while on appeal at the AAO, you qualify for H-1B extensions beyond 6 years. Getting more H-1B time may be critical to ensuring that a PERM-based I-140 can be completed in time.

To be clear, I am acknowledging this is a narrow strategy but as more and more people in H-1B status run out of H-1B time because of the various hiccups which delay PERM, including slow processing times at DOL and hiring freezes and layoffs at employers, I believe this is a strategy that more H-1B workers should be considering. It is at least something you can control.

You can either try to file the EB-2 NIW petition on your own (without an attorney), or you can pay an attorney to handle the filing, recognizing that the filing may be denied but it may be money well spent to get an additional year or two of H-1B work authorization and to ‘buy time’ for a PERM-based process to ultimately be approved.

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