Protecting your H-1B Status in an Era of Very Slow PERM processing
This detailed post will discuss the increasingly real possibility of getting lucky and winning the H-1B lottery only to run out of time 6 years later and being forced to leave the US.
Recently I posted on linkedin about the dire timing of PERM processing and why H-1B workers should be pushing more actively to get PERM started at their employers. Here is what I wrote:
If you are on H-1B visa status and your six years of H-1B time ends in 2023 or 2024, there is very likely NOT enough time for your employer to sponsor you for a green card through the PERM process.
Even people whose 6 years of H-1B time ends in early 2025 are starting to be in jeopardy given the processing times involved for PERM. A review of the current processing times -
-- Feb 2023 -- let's say your employer agrees to start.
-- March 2023 -- let's say they submit the 9141 prevailing wage request in March.
-- Oct 2023 -- the 9141 determination would probably come through in Oct 2023 if submitted in March 2023, or it could even take longer if DOL gets slower this year.
-- Nov/Dec 2023 -- PERM recruitment campaign.
-- Jan 2024 -- Cooling Off Period.
-- Feb 2024 -- File 9089 PERM application.
-- Sept/Oct 2024 -- PERM hopefully approved if you get authorization to start this month (Feb 2023).
-- Nov 2024 -- PERM-based I-140 approved via premium processing.
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So, if your 6 years of H-1B time ends before Nov 2024, the current PERM process timing means it might be too late for you to get an approved PERM and I-140 by the end of your 6 years.
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Many, many people (and employers) are failing to consider this.
An astute observer familiar with EB (Employment-Based) immigration law would notice that I neglected to mention that there are actually 2 ways to get H-1B extensions beyond 6 years.
In my linkedin post, I was focused on only one of the two ways. I was focused on getting an approved PERM and I-140, which will qualify an H-1B worker for H-1B time beyond 6 years (provided his/her priority date is not current per the Visa Bulletin - which is increasingly true for all nationalities).
H-1B Extensions beyond 6 Years - There are 2 Ways to Do it
As a general rule, a person approved for H-1B status is limited to 6 consecutive years of H-1B time. Because green card processing can take a long time, particularly for people born in India or China but increasingly for people of all nationalities, it is important to understand that there are two ways to get H-1B extensions beyond 6 years.
OPTION 1 of 2 = I-140 Approved, Priority Date Not Current. The first option to get an H-1B extension approved beyond 6 years is you get an approved PERM and approved I-140 and be unable to file your I-485 because of cut-off dates on the Visa Bulletin. This is arguably the better way to qualify for H-1B extensions beyond 6 years and it is the way mentioned in my linkedin post above. Getting an approved I-140 is important as it qualifies you for H-1B extensions beyond 6 years at any employer provided you cannot file your I-485. Having an approved I-140 also locks in your priority date (your spot in line for a green card).
OPTION 2 of 2 = “365 Days from Establishing a Priority Date.” Not mentioned in my linkedin post is the SECOND option to qualify for an H-1B extension beyond 6 years. This SECOND option to qualify for an H-1B extension beyond 6 years is based on having started the PERM process and filing a PERM application 366 days before the end of your 6 years of H-1B time. Whereas the first option will qualify you for a 36 month extension (years 7-9) beyond year 6; the second option qualifies you for just 12 months (365 days or just year 7) beyond the end of 6 years, based on having started and filed a PERM application more than 1 year from the end of your 6 year limit.
If you wanted to rely on this second option to qualify for an H-1B extension beyond 6 years, technically the situation on timing is not as dire as I mentioned in my linkedin post.
If you were trying to get a 7th year of H-1B time based on this second option, you would only focus on the date the PERM application was filed, whereas the first option for H-1B extensions beyond 6 years requires not just a PERM filing but also a PERM and I-140 approval.
The first option for H-1B extensions beyond 6 years, or as I say, the “better option” requires you to get further by the end of year 6.
In my view the second option for H-1B extensions beyond 6 years is potentially unreliable. A critical issue that is neglected by those who focus on this second option is that if the H-1B worker is terminated while the PERM application is pending, then the H-1B worker gets nothing - there is no benefit from the green card process that attaches to him or her for use at another employer.
Consider this situation:
A person gets approved for H-1B status effective October 1, 2018.
His “natural” 6 years of H-1B time will end on October 1, 2024.
His 6th year of H-1B time will start on October 1, 2023.
He will be advised by his employer that as long as the PERM application is filed before October 1, 2023, then he can qualify for H-1B extensions beyond 6 years based on the “2nd basis” for H-1B extensions. This is true!
But if he is laid off in early 2023, or even after the PERM application is filed in summer/September 2023, he will have very limited time remaining H-1B time and NOT enough time for a new employer to do a new PERM or I-140. He will be stuck and likely forced to leave the US unless he tries something extreme like returning to school.
Given the reality of slow PERM processing and the risk of a layoff, the H-1B worker will want to get an approved PERM and approved I-140 as soon as possible rather than run the risk of being laid off and running out of time.
Having an approved I-140 gives the H-1B worker more protection because if an H-1B worker is laid off with an approved I-140, then he can change employers and the new employer can extend H-1B status beyond 6 years using the initial employer’s I-140 approval.
The Importance of Recapture Time
When calculating your 6 years of natural H-1B time, you are able to calculate the time based on days physically present in the US in H-1B status. So, if in the example above, the guy who was approved for H-1B status on October 1, 2018, ended up spending 3 months of time outside the US before Oct 1, 2024, then his “max out date” would be October 1, 2024 + 3 months. It is important to consider recapture time when sorting out a person’s “max out date.”
Filing for an H-1B extension and gaining recapture time may be critical to ‘buying enough time’ to get a PERM approved and I-140 approved.
Besides Recapture - What Else Can Be Done?
Beyond the paywall below I discuss the self-petition EB-2 NIW as a long-shot “insurance policy” to protect H-1B workers who are running out of time and whose employer has not obtained an approved PERM and I-140 by the end of year 5.
In an era of slow PERM processing and unpredictable layoffs, H-1B workers should be looking to at least consider this insurance policy to protect their ability to extend their H-1B. It is definitely frustrating that an H-1B worker might have to incur personal costs to pursue an insurance policy option that might not work; but like other types of insurance, you do it because you must, not because you want to do it.
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