Priority Date Movement and H1B Extension Strategies
Posted Jun 15, 2007
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As many MurthyDotCom and MurthyBulletin readers know, there are two rules that provide a basis for extensions of H1B status beyond the standard six-year limit. Since the rule that allows for three-year H1B extensions is tied to immigrant visa number unavailability (retrogression), it is sometimes necessary to take possible priority date movement into consideration when deciding when to file the H1B extension for the 7th-year H1B extensions and beyond.
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Basic Rules for H1B Extensions
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There are two basic rules for extending the H1B beyond the six-year limit. One rule allows for one-year extensions beyond the initial six years, while the other allows for three-year extensions.
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One-Year H1B Extension Rule
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The rule that allows for one-year extensions requires that an employment-based green card case was initially filed at least 365 days prior to the requested start date for the H1B extension. This means that the first stage of the case (usually the labor certification, but potentially the I-140 petition in cases that do not require a labor certification) must have been filed 365 days before the start date of the H1B extension that requests time beyond the standard maximum of six years. The eligibility for these extensions does not depend upon visa numbers or any Visa Bulletin issues.
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Three-Year H1B Extension Rule
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The rule that allows for three-year extensions requires that the I-140 petition (second stage in labor-certification based green card cases; first stage in those cases that do not require a labor certification) has been approved and that an immigrant visa number is NOT available in the particular category. Visa number unavailability is determined by the Department of State Visa Bulletin, always available on MurthyDotCom. More information about how the Visa Bulletin works can be found in our August 6, 2004 article, Backlog Reduction May Impact Employer Priority Dates, as well as our November 5, 2004 article, Reminder: Priority Date Retrogression Expected. Both are available on MurthyDotCom.
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Since the three-year rule requires non-availability of visa numbers, its applicability in any particular case is impacted by Visa Bulletin cutoff date movement. With the good news of the forward movement of visa numbers that will help many to file their I-485s, it could result in their only being able to gain one-year H1B extensions instead of 3-year H1B extensions, based on the priority dates now being current!
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Strategy to File When the 3-Year H1B Extension is Possible
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H1B cases can be filed up to six months prior to the requested start date. Thus, those seeking three-year H1B extensions should consider filing in advance. This means that they will be filing when a three-year extension is still available to them. If their priority dates are fairly close to being current (or available), then they may want to file quickly, using premium processing, so that their cases are approved while they are eligible for three-year H1B extensions. Otherwise, by waiting, the cutoff dates could move forward sufficiently so that they would not be eligible for three-year H1B extensions. In such a situation, they would be eligible only for one-year extensions, assuming that they have met the 365-day rule.
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Example : Raj, an Indian national, has H1B status that expires in November 2007. He also has an I-140 approval in EB2, with a priority date of September 2004. If his employer files an H1B extension in June 2007 using premium processing, it potentially could be approved before his priority date becomes current. (There is no way to predict when that will happen, but the June 2007 cutoff date for EB2 for Indian nationals is April 1, 2004.)
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Alternatively, if Raj's employer waits until closer to September 2007 to file and the priority date becomes current / available, then he will only be eligible for a one-year H1B extension.
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Strategy to Wait until Visa Number Becomes Unavailable
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Since there is a six-month window to file an H1B case, there are situations in which it may be better to wait to file because of the three-year H1B extension rules. While the Visa Bulletin had significant forward movement for June 2007, the expectation is that the dates will move backwards sometime after the summer. Thus, one may wish to wait to file the H1B extension in order to be potentially eligible to request a three-year H1B extension. Of course, the extension must be filed before one's I-94 expires in order to avoid a lapse in status, and it is best not to wait until the very last minute.
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Example : Venkat, an Indian national, has an H1B that expires in December 2007. He has an EB3 labor certification case with an approved I-140 petition. His priority date is May 17, 2003. Thus, his priority date is available for June 2007 (as the cutoff date for EB3 for Indian nationals is June 1, 2003). Therefore, if his employer files his H1B case in June 2007, he will only be eligible for a one-year H1B extension. On the other hand, if he waits for a few months, it is likely that the cutoff dates will move backwards and that his priority date will no longer be current / available. In that event, he would be eligible for a three-year extension.
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Of course, to avoid any problems, the time will come when Venkat and his employer should not wait any longer to file the H1B extension. The value of a three-year extension is not worth the risk of waiting too long to file and falling out of status. The H1B extension request must be filed before one's I-94 expires, to avoid a break in status.
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Conclusion
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When using the rules for extending an H1B petition beyond the six-year limit, there can be important timing issues. Having a three-year extension saves considerable time and money in the long run. Thus, those with cases for which the priority date is close to being current, or is current but may retrogress, should understand the options and discuss strategies with qualified, experienced immigration attorneys.
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