Immigration Attorney Annie Banerjee Offers Tip to Extend H-1B Status

Houston immigration lawyer Annie Banerjee addresses extension of H-1B Status beyond Six-Year Limitation Period.

The restrictions under H-1B temporary visas can be vexing in the extreme. If the coveted status is initially gained for three years, in a remarkable feat of bureaucratic wizardry an additional six years can be gained by certain highly skilled workers. But is it possible to obtain yet another extension? Annie Banerjee describes a way it can be done. “If an employee has H-1B time remaining under the regulatory six-year limitation, the employer may file an H-1B extension petition pursuant to AC21 &106,” says Banerjee. But USCIS must make a determination in such cases, especially about the amount of time that may be granted to reach the six-year-limitation of stay, then make a subsequent determination as to whether a labor certification application or I-140 petition will have been pending at least 365 days (one year) at the conclusion of the initial six-year limitation period. “The one year extension will be granted if a labor certification is unexpired at the time the petition is filed, and if the labor certification or the I-140 petition was filed at least a year prior to the date the worker will exhaust 6 years of H-1B status, and — this is significant — if the extension certificate is otherwise approvable.”

“These extensions are very tricky,” asserts Banerjee, “especially what I’d refer to as the fine print regarding the certificate being otherwise approvable.” Skilled workers who are technically ‘aliens’ remain eligible under the Neufeld Memorandum from May 30, 2008, for a three-year H-1B extension beyond the sixth year. “But this is only true if the alien is the beneficiary of an approved I-140 petition and is ineligible to adjust their status or to apply for an immigrant visa abroad because no visa numbers are available at the time the H-1B extension petition is filed.” Banerjee mentions one other particular that might prove pertinent to such a extension petition. “If the priority date becomes current while the extension petition is pending, that can be fortuitous,” Banerjee explains, “In that case, the beneficiary should still be eligible for a three-year extension of H-1B status.”

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