H-1B Visa Extension & Renewal: Processing Times and Timeline

Many people seek H-1B visa extensions or renewals for various reasons. This page explores the H-1B extension process, processing times, news updates, and more. Foreign nationals are initially granted a 3-year H-1B status that can be extended up to a total of 6 years. However, employers can only request a total of 3 years on any given H petition.

H-1B Visa Extension and Renewal Explained

The H-1B visa extension and renewal processes are critical components of the U.S. immigration system, allowing U.S. employers to retain foreign workers in specialized occupations. An H-1B visa is typically granted for an initial period of 3 years and can be extended for another 3 years, bringing the total to six years. To extend an H-1B visa, the employer must file a Form I-129 before the current visa expires. This extension request must be accompanied by documents proving the ongoing need for the employee’s role, the employee’s maintained eligibility, and the job’s specialty nature.

In certain cases, extensions beyond the standard 6-year limit are possible under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21). Section 104(c) allows for a three-year extension if the employee has an approved I-140 but cannot adjust to permanent resident status due to per-country visa limits. Section 106(a) offers one-year extensions beyond the six-year cap if the H-1B holder’s labor certification or I-140 petition has been filed and remained unadjudicated for 365 days or more.

Renewal of an H-1B visa, which is different from an extension, involves obtaining a new H-1B visa after the maximum six-year period. This usually requires the individual to leave the United States and then be subject to the annual H-1B cap and lottery process again. However, if the individual has spent time outside the U.S. during their initial H-1B period, they may recapture that time and extend their stay beyond six years without leaving the country.

H-1B Extension Processing Time 2024

The regular processing times for the H-1B extension are between 2 and 3 months. However, the processing time depends on which service center is handling it and their caseload. It might take even longer, depending on if RFEs are issued. To get the most up-to-date information, you can check the USCIS Processing Times tool. Select the form you are filing, the category, and then the field office or service center processing it.  For a better idea of the H-1B renewal processing times for your case, it’s advisable to consult with your immigration attorney.

H-1B Visa Extension After 6 Years

There are a couple of scenarios where you can extend your H-1B beyond 6 years:

H-1B Renewal Beyond 6 Years with Pending Labor Certification or Employment-based Petition:

• H-1B holders with a Labor Certification Application or an employment-based preference immigration petition pending for over 365 days can extend their visa in 1-year increments.
• This extension continues until a decision is made on their employment-based permanent residence case.

Limitation to Employment-based Green Card Applicants:

• The 7th-year H-1B extension is exclusively available to those applying for green cards through employment-based categories, not for family-based petitions.

Extension Due to Backlog in Priority Dates:

• If an H-1B holder has filed an employment-based preference petition but can’t adjust status due to priority date backlogs, they can extend their H-1B visa beyond six years.

Benefits for H-4 Dependents with Approved I-140:

• Spouses and dependents (H-4 holders) can obtain an EAD allowing them to work in the U.S. without restrictions, if the H-1B holder has an approved I-140.
• The EAD remains valid until its expiration, even if the H-1B holder changes jobs or the I-140 is withdrawn, but renewal is contingent on having another approved I-140.

H-1B Renewal Process

• Extension Package Similarity: The extension request package is similar to the original H-1B petition, requiring new H forms, a new LCA, an employer letter, a photocopy of the original H-1B approval notice, and other supporting documents. Only one copy of each document is needed.
• Filing Timeline: The extension can be submitted up to 6 months before the H-1B status expiration, despite I-129 instructions indicating a 4-month timeframe.
• Form I-129: The employer must file Form I-129 on the employee’s behalf with all necessary documents.
• New LCA Requirement: For extensions beyond the initial three years, a new LCA must be submitted with the I-129. The old rule allowing submission of an H-1B extension with a pending LCA no longer applies. The employer must now wait for the approved LCA from the Department of Labor before filing the I-129.
• Legal Status Extension: By law, a timely filed extension request extends the foreign national’s legal status and ability to work for the sponsoring employer for 240 days beyond the H-1B status expiration date.

H-1B Visa Extension Options

There are several ways that you can receive an H-1B extension after 3 years:

• 1-Year H-1B extension

The foreign professional may apply for an H-1B extension past 6 years in one-year intervals. This can only occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.

• 3-Year H-1B extension

The foreign professional is able to apply for an H-1B visa extension status for up to 3 years if the applicant has an approved I-140 petition for the EB-1, EB-2, or EB-3 employment-based green card classifications and the immigrant visa number is unavailable.

This is usually granted so that beneficiaries do not have to return home while they wait for their priority dates to become current. Because some people must wait over a decade for an EB-3 immigrant visa number to become available, this H-1B extension can be very helpful.

• “Recapture” Time

Many H-1B holders decide to travel internationally for extended periods of time. “Recapturing” that time spent abroad is one way to be granted an H-1B visa extension. The foreign professional may request an H-1B extension if he/she traveled outside the United States during the validity of the visa. The applicant is obligated to submit U.S. entry and return dates, I-94 copies, and related stamps.

Here is an example: If Sue, an H-1B worker, visits her home country of Germany for a total of two months during her stay in the U.S., she may be eligible for an H-1B extension of two months past the normal 6-year limit provided that she can give evidence of her departure.

H-1B Extension Documents Checklist

To apply for an H-1B visa extension or renewal, a foreign professional must provide the following extension documents:

For Foreign Workers:

• Copy of passport with the original H-1B visa (if any)
• The I-797 approval notice issued by the USCIS
• I-94 Arrival/Departure form with a departure date that has not yet expired
• Your resume or curriculum vitae (CV)
• Evidence of employment demonstrated by one of the following:
  • 3 previous paychecks;
    • a leave of absence letter; or
    • a letter from the employer
• University Bachelor’s or advanced degree
• University transcript
• Academic evaluation
• Letters of recommendation from prior employers

For Employers:

• Copy of the job offer letter showing the salary offered, job title, and duties signed by both the employer and the H-1B employee
• Job description
• Company brochure or any marketing materials
• Copy of the company’s most recent Financial Statement, Business Plan, or Annual Report, if available
• Copy of the Articles of Incorporation, if available

Extension for Spouses and Dependents

Spouses of H-1B visa holders are eligible to extend their H-4 visa status upon the expiration of the primary holder’s 6-year limit, provided they have adhered to all visa regulations and have not committed any crimes. However, it’s important to note that an extension granted to an H-1B holder does not automatically extend to H-4 dependents.

To secure an extension, H-4 recipients must independently file Form I-539 concurrently with the H-1B holder’s extension application, including proof of their relationship with the primary H-1B holder. The H-4 visa’s validity is linked to the status of the primary H-1B visa holder, meaning that any extension or termination of the H-1B status directly impacts the H-4 status. In addition, H-4 visa holders seeking employment in the U.S. must obtain an EAD, which remains valid as long as the associated H-1B visa is valid. This EAD is contingent upon the H-1B holder filing an I-140 petition and receiving approval from USCIS, a necessary step for the H-4 spouse or dependent to be eligible for work authorization.

H-1B Extension Fees and Cost

In order to get your H-1B visa extension, your employer will be subject to the same fees that were involved with the original visa. These include:

• The filing fee for another I-129 petition: $780 or $460 if a small employer or a nonprofit
• The Public Law 114-113 fee (if applicable): $4,000 (if 50+ employees)
• The ACWIA fee: $750 (less than 25 employees) or $1,500 (more than 25 employees)
• The Fraud Prevention and Detection Fee: $500
• Any optional fees such as:
  • Premium processing: $2,805

It is important to remember that your employer is responsible for almost all required fees. Please also note that if your employer is paying by credit card, they must also file a Form G-1450, Authorization for Credit Card Transactions. The premium processing fee can be paid either by you or your employer. In this case, your employer must show that you chose to pay the premium processing fee for your own benefit and not for the employer’s benefit. Speak with an immigration attorney to better understand the fees involved with getting an H-1B visa extension.

When to File an H-1B Extension

Just like every other U.S. visa, you must apply for an extension of your H-1B visa before the expiration of your current status. This must be done 6 months before the expiration date indicated on your visa.

It is never a good idea to wait until your H-1B visa is about to expire to file for an extension. If you end up having to file after your visa has expired, you will run the risk of experiencing serious difficulties that could jeopardize your extension approval. If your visa has expired and you are considered “out of status,” you will need to submit evidence of all of the following:

• That you have maintained legitimate nonimmigrant status
• That the delay was necessary or outside of your control
• That the amount of time the delay took was within reason
• That you have not violated your status under the H-1B visa
• That you are not in the process of being removed from the U.S.

As you can see, proving this will be very difficult and will cost you both time and resources that are better spent elsewhere. It is, therefore, advisable to avoid this route by filing your renewal at the appropriate time.

However, if you find yourself caught out of status before filing for an extension, connect immediately with an immigration attorney to see what steps you need to take next in order to increase the chances of H-1B extension approval.

H-1B Extension Denial and Next Steps

There’s a key distinction between an H-1B extension being denied and rejected. Rejection often occurs if the petition package is incomplete or incorrect, allowing for refiling with corrections. H-1B denial, however, indicates that the evaluating officer has found the applicant or employer unqualified for the extension.

Common Denial Reasons:

• Specialty Position: Denial may occur if the USCIS doesn’t consider the job a specialty position, especially if there’s been a job change since the original H-1B was granted.
• Employer-Employee Relationship: The employer must have full control over the employee’s employment, including hiring, firing, salary, and day-to-day activities. This is particularly scrutinized in cases involving staffing agencies or self-sponsored companies.
• Visa Status Compliance: Any criminal activity, unauthorized work, or tax evasion can lead to denial.

Post-Denial Options:

• Refiling: Address the issues leading to denial and refile the petition.
• Legal Motion: Seek legal assistance to file a motion to reopen (with new evidence) or reconsider (if the decision was legally incorrect).
• Alternative Visas/Green Card: Explore other visa options like TN, J-1, O-1, L-1 visas, or green cards like EB-1, EB-2, and EB-3, depending on qualifications.

H-1B Extension 240-Day Rule Explained

The 240-Day Rule allows H-1B holders applying for an extension to continue working under specific conditions:

• 1. The extension petition is filed while the H-1B holder has valid status.
  2. The sponsoring employer submits the petition before the expiration of the current status.
  3. USCIS receives the petition on time.
  4. The H-1B holder continues working for the sponsoring employer.
• Work Authorization During Processing: If the H-1B visa validation period expires while the petition is pending, the holder can remain in the U.S. and work for up to 240 days. This authorization ends if the petition is approved (the extension then begins) or denied (work must cease, and the holder must plan for departure or alternatives).
• Status After 240 Days: If neither approval nor denial is received after 240 days, the right to work ends, but the individual can legally remain in the U.S. waiting for a decision. If approved, work and residence continue legally; if denied, the stay becomes unlawful from the notification date, and immediate departure is necessary.
• Rule Applicability: The 240-day rule applies only to H-1B extensions, not H-1B transfers or amendments. H-1B transfers allow continued work while the decision is pending, even after 240 days.
• Calculating the 240 Days: The count starts from the date after the I-94 expiration date.
• Travel Considerations: Traveling outside the U.S. during this period is risky, as re-entry might be denied until the new H-1B visa is issued. Using premium processing to expedite the petition’s adjudication is advisable if travel is necessary.

How We Can Help You

Obtaining an H-1B visa is no small feat, especially when you consider the odds of being selected in the lottery. That’s why you want to treat your hard-earned visa with care. Making any changes such as transfers or extensions is best done with the help of a qualified immigration attorney to help you avoid unnecessary losses in time, effort, and money.

VisaNation Law Group’s H-1B attorneys are highly skilled in assisting clients with required documentation for H-1B visa renewals and extensions. They work with you every step of the way to make sure that everything is done right the first time, and they will fight for you through any obstacle that may arise.

VisaNation Law Group immigration lawyers specialize in employment-based immigration matters and can help you determine if you meet the qualifications necessary for your specific H-1B extension. Book a consultation today with a VisaNation attorney for a comprehensive evaluation of your H-1B extension matter.