What are the Requirements for an H-1B Transfer?

Author:

Kaushik Ranchod, Immigration Attorney in California

The H-1B applicant must be in H-1B status; admitted lawfully to the U.S.; maintained lawful status; worked in lawful status; and the new petition must be filed prior to the expiration of the employee’s current H-1B status.

If you are a Physician, Scientist or Researcher please visit our:

Doctor and Scientist Resource Center for more information pertaining to H-1B visas.

When is the 7th year extension available for an H-1B applicant?

An H-1B visa is granted for three years, but can be extended for three more years for a total of six years.

The “seventh year extension” under the American Competitiveness in the 21st Century Act (AC21) affords the applicant the right to extend his H-1B visa beyond the six-year limit, in one-year increments, if a labor certification, or I-140 petition or adjustment of status application (based on an approved certification), has been pending for more than 365 days from the date the labor certification or I-140 was filed. The 7th year rule applies even if the labor certification or I-140 petition was filed by another employer.

Is an H-1B applicant eligible for the three-year extension beyond the six-year limit?

If a person has an approved I-140 employment-based immigrant petition but is unable to adjust status because immigrant visa numbers are not currently available, he or she could extend his H-1B visa for three more years beyond the six year limit. This exception only applies if there are no immigrant visa numbers available for the employee to immediately apply for permanent residence (i.e., green card). This rule also applies to L-1B visa holders. In this case, the H-1B employee should make sure that he or she has more than one and a half (1½) years left on his or her H-1B visa to accommodate labor certification and I-140 processing times.

What are the other H-1B Extension Options?

If the H-1B applicant is unable to extend his or her H-1B visa beyond six years, what other options does he or she have to maintain lawful status? Even if s/he has less than one year left on his or her H-1B visa, the employer could file for a labor certification on the H-1B applicant’s behalf; although this is not a perfect solution. After the labor certification is approved, which may take anywhere from one day to a year before the U.S. Department of Labor approves the application, the employer may file for an employment-based I-140 petition. After the employment-based petition is approved, the employee may file for adjustment of status to permanent residence and work authorization card, if immigrant visa numbers are available. When the work authorization document is issued, the employee may continue to work for the employer based on the work authorization card.

The suggestion above assumes that the H1B candidate will be able to adjust status before his or her H-1B visa expires. Recently in 2008 visa numbers have not been immediately available for Indian and Chinese nationals for second and third employment-based categories, unless they qualify under the employment-based first preference category.

In other words, even if the H-1B applicant qualifies under the employment-based second preference category based on a master’s or higher degree, he or she could still be waiting three years before being eligible to file for permanent residence.

For more detailed information, please visit our H-1B Transfer page on www.doctorsimmigrationlaw.com.

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