My Six-Years In H1B Is About To Expire; WHAT DO I DO?
If there are approximately 24 months before your H-1B is to expire, you should discuss the Employer Sponsored Green Card (EGC) process with your employer. Due to the length and complexity of the EGC process, it is imperative that your employer begin this process no later than 24 months prior to your 6-years in H-1B status expires. In order to extend your H-1B status beyond six (6) years, the Permanent Labor Certification Application (PERM) must be pending for up to one year prior to the expiration of your 6-years in H-1B status (see “exception” discussed below). If you are less than 24 months from expiration of your six (6) years in H-1B status, an EGC is possible, but it requires an experienced immigration attorney and a dutiful and attentive employer.
If you are less than a year from expiration of your six (6) years in H-1B status, then your options are not extensive. One option is to change status to B-2 status to do some traveling to the US. Another option is to change to F-1 status and attend school to further your academic credentials – the recommendation would be for a higher degree than you had previously acquired in the U.S. This will allow time for your pending PERM application to reach the 365-day point, or even better, be approved.
An “exception” to the 365 days pending is not really an exception. Here is why – Your H-1B period is calculated by USCIS as 2190 days from the date you first began working in H-1B status. If within those first 2190 days, you travel outside of the U.S., each 24-hour period outside of the U.S. can be added to the end of your 2190-day period (referred to as recapture time).
Illustration – You began working in H-1B status on October 1, 2017, meaning your 6 years in H-1B status will end on September 30, 2023. You have been working so hard to provide for your family, your children have been enjoying their school for the past five years, your daughter is about to start college, your son just got selected as the captain of the debate team, and you suddenly realize on August 31, 2022 – Oh my!, in a little more than a year we have to leave all we have built over the past five years behind and return to our home country. But, wait, I and my family have made America our home now, and we want to stay! You contact Attorney Marc Taylor to discuss your options, and during the consultation you inform him that your employer is so amazing, they have provided their employees (including you) 4-weeks of vacation annually from day 1 of employment. You have taken full advantage of that benefit and since October 2017, you have been outside of the U.S. each year (2017 through 2022) for 4 weeks (28 days). That is a total of 168 days, and you will be outside of the U.S. in 2023 for another 28 days, making your total “recapture” time 196 days prior to the expiration of your 6-years in H-1B status!!
As discussed above you can add these 196 recapture days to the end of your 6-years in H-1B meaning that you can extend your H-1B beyond September 30, 2023, to April 13, 2024. Now, instead of having only 13 months to process your EGC, you have 19.5 months. The key to making sure you and your family can remain in the U.S. after April 13, 2024 requires immediate action, prompt coordination, and an innovative and experienced immigration attorney, to guide your employer through the EGC process.
You should speak to an immigration lawyer to ensure that you can exercise the 7th-year H-1B extension rule – where you can remain in the U.S. and employed in H-1B status beyond the maximum 6-years in H-1B.
For more information on Immigration Matters, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (888) 912-5152 today.
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