Written by attorney Anu Gupta

Extending time-limits on a H1 and L1 visa when the green card was not started on time.

Question: Is there any way to extend time on a H1 or L1 visa so we can file for a green card and the foreign worker can stay beyond 6 years? The employee is already in the 6th year.

Answer: Yes, there are several options. A foreign worker stays on a non-immigrant visa (H1 or L1B) for a maximum of 6 years. If we have filed a green card 365 days before his 6th yr expires, i.e. while the employee is in his 5th year, he qualifies to continue extending his H1 or L1 visa beyond 6 years, till the green card is finally approved. If the employer did not start the green card on time, the foreign worker will be required to leave the country for one year before he can return to work on a H/L visa.

To keep the employee in the US, we can explore several different options.

Extending timelines for H1B 6th year.

First, we can extend the filing timelines if we send the employee out of the country for a few months. Based on current laws, any time spend outside the country is not counted towards the 6 years of a H1 or a L1 visa. So, for example- If his H1′s 6 year expires June 2014 and he leaves the country for 2 months, his H1 can be extended till August 2014. This gives the employer till August 2013 to file a green card for him. Since the green card will be started 365 days before the visa expires in August 2014, the beneficiary will qualify to continue on a H1 visa beyond 6 years.

Getting I-140 approved and filing for 3 year H-1B extension under AC21.

Second, even if the green card is started in the sixth year, it may be possible for the employee to stay beyond 6 years. This will happen is if the labor certification and I-140 are both approved during the 6th year, before the employee’s visa expires. This will qualify the employee to file for a 3 year extension of the H-1B visa based on the approved I-140. This is permissible under AC21.

Approval of Labor Certifications is currently only taking a few months. If we premium process the I-140 petition, it will get approved in a few weeks, allowing us to file for a H-1B extension for 3 years.

Changing status to a F1.

For some people, it may be an option to return to university for a higher degree. For most STEMS degrees, it may be possible to continue to work part time while a student and for up to 27 months after graduating. In the meanwhile, the green card can be filed and processed.

Changing status to a dependent visa.

It is always possible to change to a dependent visa if your spouse is working.

There are always other options, depending on a person’s unique circumstances. Our office has successfully changed status to O-1 (exceptional category) visa. Depending on a person’s background changing to L-1A manager is also possible.

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