Monday, December 3, 2007

H-1B 7th Year Extension and the Visa Backlog

What is an H-1B?

An H-1B temporary worker is a foreign national who is coming temporarily to the U.S. to perform a specialty occupation. A specialty occupation is defined as "an occupation that requires (A) theoretical and practical application of a body of highly specialized knowledge, and (B) attainment of a bachelor's or higher degree in the specific specialty as a minimum for entry into the occupation in the United States." INA214(i); 8USC 1184(i)

Limitation on Duration of Stay

An employer may request initial employment for up to a maximum of 3 years. The H-1B can be extended. Generally, the maximum amount of time that an individual can hold H-1B visa status is 6 years.

On the 6th Year as an H-1B + Visa Backlog = Trouble

A major issue created by the EB-3 (and EB-2) backlog is its effect on many H-1B workers who are subject to the 6 year limitation.

Unless a labor certification and visa petition were filed for an H-1B holder at the beginning of their stay, many H-1Bs are faced with the possibility of having to return to their home country because the visa backlog has created a time gap between the end of their H-1B stay and the anticipated time they would adjust their status to that of a permanent resident. Furthermore, employers who have invested resources in training the H-1B worker will lose the benefit of that training, if the foreign worker is forced to leave.

Employers should be aware of the three exceptions to the 6 year limitation of the H-1B visa:

(1) A foreign worker in H-1B status is entitled to an extension beyond the 6 year limitation in 1 year increments IF he or she has a labor certification or I-140 visa petition that has been PENDING for over 365 days;

(2) The same worker is entitled to an additional 3 year H-1B extension beyond the 6 year limitation IF he or she has an approved I-140 visa petition and his or her Employment Based category is subject to the backlog;

(3) The H-1B worker is entitled to get back all days he or she spent outside of the United States, where only actual presence in the United States is counted toward the 6 year limitation imposed by the H-1B visa.

1 comment:

Jennifer said...

Hi Max, I am a bit confused on the PERM and the 365 day filing rule. I read other attorney accounts that state, the PERM must be FILED within the 365 not that the decision must be PENDING. I just need clarification regarding this. Thanks!