Thinking Ahead: Enabling Continuous Employment of Your H-1B Employee Past the 6-Year Physical Presence Limitation

Are you currently employing an employee in H-1B status and you want to retain them because they’re an invaluable member of the team? You've heard that all you need to do is file an H-1B extension to ensure their continuous employment at your company, right? Not so fast... You first need to understand how much time the employee has left in H-1B status and confirm there's eligibility to file an extension of their status.

• An H-1B employee can only be employed in the U.S. in H-1B status for a total of 6 years. After reaching this limit, the individual must depart the U.S. and spend one year abroad before a U.S. employer can file another H-1B petition regarding the worker.

This disruption in employment is not ideal for employers, but there is a solution to avoiding it: the employer-driven green card process.

Employers can petition for an extension of their H-1B employees’ H-1B status past the 6-year physical presence limitation in situations where the employer has made significant enough progress in the green card process, namely:

1. The employer’s PERM 9089 Labor Certification Application has been pending with Department of Labor for over 365 days;

   
   

   OR

   
   

2. The employer has an approved I-140 Immigrant Petition regarding the worker and the worker is unable to proceed to adjustment of status or consular processing because the visa bulletin is backlogged for their corresponding category.

With option #1, employers can request a 1-year extension of their worker’s H-1B status. With option #2, employers can request a 3-year extension of their worker’s H-1B status.

Timing is Everything

The employer-driven green card process is lengthy, often taking years, and employers wishing to undergo it should be aware that they should begin this process by the beginning of the employee's fifth year of physical presence. DOL and USCIS processing times are constantly varying, but just the beginning stages of the process (filing a PERM Prevailing Wage Application with DOL, obtaining a PERM Prevailing Wage Determination from DOL, and conducting a successful test of the labor market) can take over 6 months, and sometimes even a year. So, it’s important to start early.

Many H-1B workers are interested in securing stable employment for themselves in the U.S. and are often looking for employers who are willing to start the employment-based green card process on their behalf. Being willing to engage in the employer-driven green card process for employees you wish to retain long-term will help you attract and retain valuable personnel.

For more information on the employer-driven process, please visit Employment-Based Green Card Training | Corporate Immigration Compliance Institute (usimmigrationcompliance.com).