H1b Continue Working on Expired Lca

The increasingly-popular H-1B visa provides many advantages to those who hold it. Considering the long process involved with finding an employer, being selected in the lottery, and then being approved, the H-1B visa is very valuable. For that reason, it is understandable that many people would want to look into an H-1B visa extension or renewal as they find new employment, work toward their green cards, or simply wish to continue working and living in the United States. On this page, we explore the process, H-1B extension processing times, relevant news updates and more.

Under normal circumstances, a foreign national is initially granted a period of stay of 3 years in H-1B status. When you near the end of that period, you will be able to apply for an H-1B visa extension up to a total of 6 years. An employer, however, can only request a total of 3 years on any given H petition. It is important to note that for certain H-1B1 applicants from Chile and Singapore, the visa is only valid for a one-year period of admission, which can be renewed each year.

Requirements for H-1B Visa Extension Beyond 6 years

Certain H-1B holders who have had a Labor Certification Application (or an employment-based preference immigration petition if the foreign national has been able to bypass the labor certification stage) pending for more than 365 days may be able to extend their H-1B visa beyond the 6-year limit, in 1-year increments. This can continue until the time a final decision is reached on the pending employment-based permanent residence case.

Unfortunately, this 7th-year extension is limited to persons who are applying for their green cards through the employment-based category; it is not available to persons with pending family-based petitions.

Another provision of the current statute permits an H-1B extension beyond the 6th year if the H-1B visa holder has filed an employment-based preference petition but is unable to proceed with adjustment of status to permanent resident status because of a backlog in priority dates.

If you have an employment-based immigrant petition (I-140) filed with the USCIS and have received approval but are waiting for your priority date to be current, your H-4 spouse and/or dependents are eligible to apply for employment authorization and get an EAD (Employment Authorization Document). This will allow them to work for any U.S. employer without restriction (aside from jobs that require security clearance).

As long as you have an approved I-140, your H-4 holders will be able to extend their work authorization. However, if you were to change jobs or your employer were to withdraw your I-140, the EADs would still be valid until their expiration date, but they would be unable to be renewed unless you had another I-140 approved by that time.

Temporary Rule to Increase Automatic Extension Period for EADs

In May of 2022, USCIS announced they would be temporarily increasing the automatic extension period for EADs and some employment authorization for some EAD renewal applicants and employment authorization for up to 540 days to prevent gaps in employment. Note that when October 27th, 2023 rolls around, the automatic extension will go back to the 180-day period for individuals who file I-765 renewal applications.

"As USCIS works to address pending EAD caseloads, the agency has determined that the current 180-day automatic extension for employment authorization is currently insufficient," said USCIS Director Ur M. Jaddou. "This temporary rule will provide those noncitizens otherwise eligible for the automatic extension an opportunity to maintain employment and provide critical support for their families, while avoiding further disruption for U.S. employers."

Learn more about the temporary automatic extension period increase.

H1B Extension Processing Time 2022

Due to the inflated demand for the H1B visa, processing times can be lengthy. For the regular application process, H1B processing time takes over 3 months to get approved. H1B extension processing time, like for the regular processing, depends on which service center is handling it and their caseload. For H1B extension processing time, it's taking about anywhere from 4 weeks to 5+ months depending on if RFEs are issued. To see the most up-to-date info, check the USCIS Processing Times tool. Select the form you are filing, the category and then the field office or service center processing it. As of September 2022, the Texas service center has the fastest processing times. Consult with your immigration attorney on the most probably H1B renewal processing times for your case.

H1B Renewal Process

Extension requests are fairly similar to the original H-1B petition package (i.e. required filing fees, new H forms, new LCA, new employer letter, photocopy of the H-1B approval notice from the original petition, as well as the other supporting documents). However, only 1 copy of each document is required in an extension petition package. The extension request can be submitted up to 6 months before the date upon which the H-1B status is due to expire (despite the fact that the I-129 instructions indicate a 4-month time frame for this).

Your employer will have to file Form I-129 on your behalf and submit it with all of the necessary documents. A new Labor Condition Application (LCA) for an extension beyond the initial three-year period must also be submitted by your employer along with the I-129. Keep in mind that the old rule where an employer would be allowed to submit an H-1B extension request with a pending LCA does not apply anymore. Now, your employer must wait and receive the approved LCA from the Department of Labor before filing an I-129 on behalf of an employee.

By law, the timely filing of an extension request automatically "locks in" the foreign national's legal status and ability to work for the sponsoring employer for a period of 240 days beyond the date upon which the H-1B status expires.

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 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.

Premium Processing

Fortunately, you are able to use the optional H-1B premium processing service to expedite your new petition's processing time to 15 calendar days. Once you have been counted against the cap, you are no longer bound by the lottery dates (i.e. April 1 and October 1). This means that using premium processing for an H-1B extension may be much more beneficial to your case than it would be if you were filing in the cap, where the mandatory six-month waiting period to start work usually renders premium processing obsolete.

To take advantage of this service, you will need to file an I-907, Request for Premium Processing, along with your I-129 petition. The filing fee is $2,500 if you are filing form I-129 for H-1B, H-3, E-1, E-2, E-3, L, O, P, Q, or TN classifications.

Who pays the premium processing fee?

There is some uncertainty surrounding who is supposed to pay. The Department of Labor has stated that the employer can pay the premium processing fee, while USCIS has mentioned the beneficiary can. The safest course is for the employer to pay but in the event that the beneficiary does it should have no effect on their wage and especially shouldn't reduce it below the prevailing wage based on the LCA.

Be mindful not to send requests for premium processing to a USCIS lockbox. If you are filing the premium processing for Form I-129 use the following addresses:

USPS:

Premium Processing Service
USCIS California Service Center
Attn: I-129 H-1B Cap Exempt
P.O. Box 10825
Laguna Niguel, CA 92607-1012

FedEx, UPS, and DHL deliveries:

Premium Processing Service
USCIS California Service Center
Attn: I-129 H-1B Cap Exempt
24000 Avila Road
2nd Floor, Room 2312
Laguna Niguel, CA 92677

You can expect to get an approval notice, denial, notice of intent to deny, or RFE within the 15-day calendar period. If the USCIS fails to process your petition in the promised time, you will receive a refund of your premium processing fee, and your petition will be processed normally.

What if USCIS asks for additional evidence?

If that's the case, then a new 15-day calendar period will begin when USCIS receives a response to the request for evidence.

Keep in mind that the USCIS reserves the right to suspend premium processing for any fiscal year. Check with the USCIS news in order to see if this option is available in the year that you are filing.

H-1B Extension Documents Checklist

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

For Employees:

• Copy of passport with the original H1B 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 assigned 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

H-1B Visa Extension Process for Spouses

Spouses of H-1B holders are eligible to extend their H-4 upon the expiration of the 6-year limit. This extension is usually granted as long as the H4 holder has not committed any crimes or violated the regulations of their visa.

However, just because the primary H-1B holder has received an extension, it does not automatically grant all attached H4 holders extensions as well. It is important to remember that H-4 recipients must file the I-539 concurrently with the original H-1B extension application along with proof of the relationship with the primary H1B holder.

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: $460
• The amended Public Law 114-113 fee (if applicable): $4,000
• The ACWIA fee: $750 or $1,500 depending on whether your employer has more or less than 25 employees.
• The Fraud Prevention and Detection Fee: $500
• Any optional fees such as
  • Premium processing: $2,500
  • Attorney fees: You can see the legal fees charged by VisaNation Law Group here.

It is important to remember that your employer is responsible for almost all required fees . However, 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 get a better understanding of 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-4 Visa Extension

If you are planning on bringing a spouse or dependent with you to the U.S. while you are under an H-1B visa, you can have them apply for an H-4 visa. This secondary visa would be tied to your own visa status, meaning that if you get an H-1B extension, so will your H-4 visa spouse or dependent. On the other hand, if your status is revoked or otherwise terminated, so is theirs.

Additionally, if the H-4 visa holder would like to work in the U.S., they will need to obtain Employment Authorization Documents (EAD). In the same way, the EAD will be valid for as long as the H-1B visa is valid and any extensions will also be applied to the EAD. However, in order for your H-4 spouse or dependent to get an EAD, you (the H-1B holder) will need to file an I-140 and have it approved by the USCIS.

What If I Get an H-1B Extension Denial?

First of all, you will want to determine whether your H-1B extension was denied or if it was rejected . Even though they seem like synonyms, in immigration law terminology, there is a crucial difference between these two terms.

The USCIS processes H-1B extension petitions (and all visa petitions) in two stages. During the first stage, an evaluating officer will make an initial inspection of your case to ensure that your petition is completely filled out and accurate, that your fees are correct and filed to the right places, and that you have the documents and supporting evidence required for an H-1B extension. If your petition packet is missing any of these elements, it will likely be rejected. If this happens, you will not receive a refund, but the best course of action is often to fix the error or omission and refile your petition with new fees.

For the second stage, an evaluating officer will take a close look at your petition and supporting documents to determine whether or not you and your employer are qualified for an H-1B extension. If not, then the officer is likely to deny your petition. Fixing this is not as simple as refiling, as your case will still not be considered qualified to merit the extension.

Extension Denial Reasons

If you are concerned that your H-1B visa extension will be denied, here are some common reasons why the USCIS evaluating officer might make such a decision for your case.

• Specialty Position – If you have changed jobs with your sponsoring employer since obtaining your H-1B, there is a possibility that the USCIS may not deem it a specialty position. To avoid this, stay within the same position or line of work that you used to get your H-1B or consult with an immigration attorney to see if a new position will result in an extension denial down the road.
• Employer-Employee Relationship – The USCIS requires that the employer must be in complete control of the H-1B holder's employment. The employer must have the ability to hire and fire the employee as well as control their salary, work location, and day-to-day activities. This rule mostly affects those that are hired through staffing agencies and those that attempt to be sponsored by their own companies.
• Visa Status – Maintaining your visa status is crucial to avoiding extension denials. Committing crimes in the U.S. is grounds for deportation and certainly grounds for an H-1B extension denial. Also, working without authorization or dodging taxes can easily be reasons for the evaluating officer to deny your extension.

What To Do After A Denial

If your extension petition is denied or rejected, you will likely have a few choices available to you.

1. You can identify the issue that led to the denial of your petition and refile
2. You can file a legal motion with the help of your attorney
3. You can petition for a different visa or green card
4. You can leave the country

Your denial or rejection notice will probably state that appealing the decision is not an option. Fortunately, the USCIS will likely give you the reason for your denial, though they will also note that no appeal can be made to a third party concerning the decision.

Legal Motions

Filing a legal motion is a delicate process that should not be done without the help of a qualified attorney. There are two types of legal motions that can be filed in the event of an H-1B extension denial.

The first is a motion to reopen your case. This is put into effect usually when some new evidence comes up that, if viewed with your case, might change the negative decision. Therefore, you are requesting the evaluating officer to reopen the case and re-examine it with this new information.

The second motion is a motion to reconsider. This is something you would use if your attorney believes that the evaluating officer was wrong in his or her decision to deny your H-1B extension. However, your attorney must be able to present an argument that the extension should be approved from a strictly legal perspective.

Other Options

If your H-1B extension is denied, then you may want to consider applying for a different visa or green card that matches your qualification. For nonimmigrant visas, you have:

• TN visas for professional workers from Canada and Mexico
• J-1 visas for exchange visitors such as professors and medical students
• O-1 visas for those with extraordinary ability
• L-1 visas for the specialized employees, managers, and executives of multinational companies.

If you are interested in making your stay more permanent, you can consider applying for a green card such as the:

• EB-1 green card for those with extraordinary achievements, outstanding researchers and professors, as well as the managers and executives of multinational companies.
• EB-2 for those with exceptional ability, those that have an advanced degree, and those that qualify for a National Interest Waiver.
• EB-3 for professional workers (those with bachelor's degrees), skilled workers (those with more than two years of relevant work experience), and other workers (those with fewer than two years of experience).

The H-1B Extension 240-Day Rule

If you have reached the typical six-year limit on your H-1B visa and have applied for an extension past this limit through an approved I-140, you are still subject to your visa validation period.

According to the 240-Day Rule, an H-1B holder with an extension pending will be allowed to continue working under the following conditions:

• The H-1B employee still has a valid status while filing an extension petition.
• The sponsoring employer files the extension petition on time before the expiration of the current status.
• The USCIS receives the petition on time before expiration of the employee's current status.
• The H-1B continues to work for the sponsoring employer who has filed the extension.

However, while the best advice is to apply for your extension well before your validation period ends, you cannot predict or control how long it will take for your H-1B extension to be processed. Fortunately, the USCIS has a provision for situations where your H-1B validation period expires while the petition is being processed.

The 240-day rule states that you are permitted to remain in the U.S. working for your current employer throughout this period. If your petition is approved during this time, then your 240-day work authorization will end, and your H-1B extension will begin. However, if your petition is denied, this provision will immediately end, and you will need to cease working and make plans for alternatives or to leave the country.

What Happens If My Extension Petition Is Still Pending After 240 Days?

If you have received neither the approval nor denial notice 240 days after submitting your extension petition, your right to continue working will end. However, you will still have the legal right to continue living in the United States, waiting for the USCIS to make a decision on your case.

Your stay during this period will be considered as authorized stay. If your extension request is then approved, then you will have the right to continue working and living in the U.S. However, if you receive a denial notice, your stay from that moment will become unlawful presence, as your period of authorized stay ends the very day the USCIS notifies you of the denial. You will need to depart the United States immediately to avoid violating immigration law and accruing unlawful presence.

Does 240-Day Rule Affect H-1B Transfer, Extension, or Amendment Petitions?

No, the 240-day rule only applies to or affects H-1B extension. If you file your transfer petition before the expiration of your I-94 and it is still pending after 240 days rules, you will not be denied the right to continue working. Unlike with an H-1B extension, filing for an H-1B transfer allows you to continue working while waiting for the USCIS to make a decision on your petition.

H-1B Extension With Amendments

When it comes to an H-1B extension with amendments and the 240-Day Rule, there is a grey area that can be interpreted in different ways. You still have the legal right to continue living in the United States after 240 days of waiting for a decision. Also, you may still be able to continue working with amendments added to your extension petition, even after the 240 day period. However, you and your employer will need to consult an immigration attorney to ensure that you are moving forward correctly.

How to Calculate H-1B 240 Days

The 240-day period begins starting on the date stamped on your Form I-94, Departure Record, which is the day your authorized H-1B period of stay expires. For example, if your Form I-94 expires on February 1, 2020, you will need to add 240 days starting from February 2.

Can I Travel Under the 240-Day Rule?

Leaving the U.S. during this H-1B extension provision may result in you not being able to return to the country until you receive your new H-1B visa. Therefore, it is not advisable to travel during this time. If you need to travel, then you may want to consider using premium processing to expedite the adjudication of your extension petition.

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 the specific H-1B extension. To contact us, simply fill out our contact form to schedule your consultation.

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Source: https://www.immi-usa.com/h1b-visa/h1b-visa-extension/

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