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.

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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).

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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.

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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.

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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.