Extending an H-1B Employee's Status


H-1B status is extended by the employer filing with USCIS a petition requesting an extension.  The petition must be filed before the current H-1B status expires.
 
Required documentation must be submitted upon request by ISFS through Tracker.  Upon receipt, ISFS will proceed with requesting the prevailing wage and filing the Labor Condition Application.  The petition will be sent to USCIS with only the  standard filing fee.  The petition for extension should be filed as soon as possible but not more than 6 months before the current H-1B expires.
 
Extensions can be requested for any period of time up to a maximum of 3 years as long as this does not put the employee over the 6 years  he or she is allowed to be in H-1B status.
 
Exceptions to the 6 year maximum include the following instances:
  • If the foreign national has spent time abroad while in H-1B status, that time is recoverable.
  • If 365 or more days have elapsed since a labor certification or I-140 benefiting the H-1B holder was filed, he or she may be eligible for a one-year extension of his or her H-1B status.
  • If the foreign national is a citizen of India or China having an approved I-140 but cannot apply for adjustment of status because his/her priority date is not current due to the "per country" limits on immigrant visa availability, the foreign national may be eligible for a three-year extension of his or her H-1B status.

  
Employment While Extension is Pending
Depending upon the remaining time left on the employee's H-1B maximum 6 year stay, federal regulations allow the H-1B holder with a pending extension to work for up to 240 days after the current H-1B expires.
 
In order to take advantage of this rule:
  1. The petition for extension must be received by USCIS before the current H-1B expires; and
  2. The H-1B must continue to work for the employer that filed the extension petition.

  
H-1B Extension and International Travel

The H-1B holder must be physically present in the U.S. when the H-1B extension is filed with USCIS.  H-1Bs who travel after the extension is filed must be sure that they have, or can obtain, a valid H-1B visa for their return to the U.S.  If the travel plans include returning after the current H-1B expires, the H-1B will have to wait outside the U.S. until the extension is approved and it can be used to obtain a new visa.