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H-1B Visa Extensions

While the H-1B quota for the fiscal year 2014 is over, it is significant to note that those foreign nationals already in the US on H-1B visas are exempt from the annual quota. Therefore, USCIS will continue to adjudicate H-1B visas so far as they relate to extension and transfers.

The H-1B visa is initially valid for three years. However, an additional three year extension can be obtained. After this six year period, further extensions can be obtained in certain circumstances.

It’s important to note that the six year period of stay includes time spent in the US on both H-1B and L-1 visas. After completing 6 years of stay in the US, a person cannot be readmitted in the US on a H-1B visa until he or she has remained outside the United States for at least one year. Brief trips to the United States on a visitor visa during this period of one year are permitted. The regulations are not clear as to whether the foreign national must complete the period of one year at the time he or she is applying for a new H-1B or at the time he/she enters the US on H-1B. The process of filing the H-1B paperwork is complex and it is imperative that one retains a competent attorney.

A foreign national with an approved H-1B petition is entitled to remain in the US on the H-1B for the full period of 6 years.

In some situations, the H-1B visa can be extended beyond 6 years. These exceptions are based on either 1) per-country limitations; or 2) long-pending labor certification application or immigrant visa petition. The per country limitations involve situations where the H-1B visa holder is otherwise eligible for a EB-1, EB-2, or EB-3 immigrant visa (a “green card”), but cannot receive one because of the per-country quota limitations. In practice, this exception is applicable to EB-2 and EB-3 preference categories. This exception allow the H-1B visa to be extended in three year increments. The second exception is the long-pending labor certification or immigrant petition exception, and it is for H-1B visa beneficiaries who have filed either a labor certification or employment-based immigrant visa petition by the end of the H-1B worker’s fifth year. The extension in the second case is in increments of one year. The extensions are permitted for as much time as needed for a final adjudication on the labor certification application or employment-based petition.

If these rules surrounding H-1B extensions seem complex, they definitely are and require a trained attorney to guide a H-1B visa holder through the process. We are also hoping that rational minds prevail and Comprehensive Immigration Reform will remove some of these complex hurdles for hard-working H1-B visa holders. Contact our office if you have any questions regarding the H-1B visa extension process or any other of your immigration issues.

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H1-B Visa Cap Reached, Possible Lottery

Just as we and many other sites have predicted, the H1-B visa hit its cap on Friday, April 5th, just a mere four days since the opening date on April 1st.

Even before this year’s H1-B visa application season opened, there was talk of a possible lottery. USCIS, the government branch in charge of handling a large proportion of visa petitions, has done a lottery for H1-B visas in the past – most notably in 2008 when the H1-B visa cap was reached on the very first day. This year’s lottery involves a computer-generated random selection process, starting first with the advanced degree petitions. USCIS announced today (Monday April 8th) that it received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.

The speed at which the H1-B visa cap was exhausted bolsters our blog posts and other media outlets’ reports on the need for Comprehensive Immigration Reform. In particular, there has been numerous pushes to raise the H1-B visa cap to allow foreign talent to work for the benefit of American companies and spur productivity. John Feinblatt, Chief Policy Advisor to New York City Mayor Michael Bloomberg and Chairman of the Partnership for a New American Economy, reflected similar sentiments when he stated, “The fact that our supply of H-1B visas was exhausted so quickly is not only emblematic of our broken immigration system – it represents yet another missed opportunity to attract the world’s best and brightest to our shores.”

As we’ve stated before, some H1-B related Comprehensive Immigration Reform proposals include allowing H1-B visa holders to get green cards by investing $100,000 to start a business and hire two full-time employees. The proposed Immigration Innovation Act 3.0 will also almost double the current visa cap from 65,000 to 115,000 and allow for unlimited H1-B visas for those who have a Master’s Degree from a United States University.

If you have any questions about the H1-B visa or any of your immigration issues, contact our office!

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