Staying beyond six years on H1 if Labor Certification not filed in fifth year

Question: I have an employee who just started her sixth year on the H1B. Due to an oversight, we forgot to file for her labor certification last year. Is there any way in which she can stay after her H1 expires and continue to work for us?

Answer: There may be options that you have in this case. Let me clarify applicable laws first, then explain her status. Workers stay on a non-immigrant visa (H1) for a maximum of six years. If we have filed a green card 365 days before their sixth year expires, they qualify to continue extending their H1s beyond six years, till the green card is finally approved. If, for some reason, you did not file her labor certification on time, she will be required to leave the country for one year before she can return to work on a H1 visa.

Under current laws, there are several options available to keep the employee in the U.S. beyond six years.

Extending timelines for H1B sixth year. First, we can extend the filing timelines if we send her out of the country for a few months. Based on current laws, any time spend outside the country is not counted towards the six years of a H1B visa. So, for example, if her H1′s six-year expires March 2013 and she leaves the country for three months, her H1 can be extended till June 2013. This gives you till June 2012 (365 days prior to her H1 expiry)  to file a labor certification for her and to keep extending her H1 after the sixth year expires.

Getting I-140 approved and filing for three-year H1B extension under AC21. Second, if the labor certification and I-140 are approved while in the sixth year, we can file for a three-year extension of the H-1B visa based on the approved I-140. This is permissible under AC21.

Labor certification processing has become pretty fast in recent years. Certainly, most labor certifications get approved within a year. If we premium process the I-140 petition, it will get approved in a few weeks, allowing us to file for a H1B extension for three 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, sometimes it may be possible to continue to work part time while a student. After graduation the student can work for up to 27 months. 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.


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