Nonimmigrant Maximum Periods of Stay and the Employment-Based Green Card Process

The H-1B nonimmigrant category has a 6 year maximum period of stay in the U.S., the L-1A nonimmigrant category has a 7 year maximum period of stay in the U.S. and the L-1B nonimmigrant category has a 5 year maximum period of stay in the U.S. A common question we receive from clients is:

What happens if the H-1B or L-1A/L-1B time runs out before a green card can be secured?
If the foreign national is being sponsored by his/her employer for an employment-based green card, additional extensions of H-1B status may be possible. Additional extensions of H-1B status may be provided pursuant to one of the options below:

(1) The first step in the employment-based green card process (either the labor certification or the I-140 Immigrant Petition) is filed with the applicable government agency prior to the foreign national’s H-1B 5th year anniversary; or

(2) The labor certification is certified or approved by the U.S. Department of Labor (DOL), the I-140 Immigrant Petition for Alien Worker is approved by the U.S. Citizenship and Immigration Services (USCIS) and the foreign national is unable to complete the final step in the green card process due to immigrant visa backlogs.

Under option (1), extensions of H-1B status beyond the six year maximum may be requested in one year increments until the green card is issued. For option (2), extensions of H-1B status will be provided in three year increments. Please note that if an immigrant visa becomes available for the foreign national and he/she is relying on option (2) for continued H-1B extensions, the foreign national may still be eligible to file for extensions of H-1B status under option (1) until the USCIS issues a final decision on the last step of the green card process. To do so, at least 365 days or more must have passed since the filing of the labor certification or the I-140 Immigrant Petition. In the event the underlying labor certification or the I-140 Immigrant Petition is ultimately denied or revoked, further extensions of H-1B status under either option (1) or (2) are no longer possible. Please note that if the denial of the case is appealed, extensions of H-1B status may be granted while the appeal is pending with the government agency.

Unfortunately, there are no provisions of law that will permit a foreign national to extend his/her L-1A or L-1B nonimmigrant status beyond the 7 year or 5 year maximum period of stay in the U.S. If a foreign national in L-1A or L-1B status wishes to immigrate to the U.S. and his/her employer is willing to sponsor that process, it is important to strategize with legal counsel early on in an attempt to determine if completing the green card process prior to the L-1A or L-1B maximum period of stay is feasible. If it is unlikely that the green card process can be completed in time, legal counsel will be able to advise on other nonimmigrant visa options that are available to the foreign national. It is not uncommon to change a foreign national’s status from L-1B to H-1B when he/she is pursuing an employment-based green card.

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