File H1B Extension Before Priority Date Becomes Current

As regular readers of MurthyDotCom and the MurthyBulletin are aware, the employment-based, second preference (EB2) cutoff dates in the U.S. Department of State (DOS) Visa Bulletin have advanced rapidly in recent months. Many individuals are closer to completion of the permanent residence (or “green card) process, while others hope to file their adjustment applications in the near future. These developments have resulted in a tendency by some to delay filing H1B extensions for workers whose priority dates are potentially close to becoming current. As explained here, however, delaying the H1B extension filing can be counterproductive in some respects and must be considered carefully, as there are advantages to maintaining H1B status.

Benefit of Maintaining H1B Status

Those who are working in H1B status generally need to maintain that nonimmigrant status in order to continue living and working in the United States. It also is advisable to maintain the H1B, if possible, even after filing the application for adjustment of status to permanent residence (Form I-485). H1B status carries important benefits that continue beyond the filing of an I-485.

One of the most important advantages applies if the I-485 is denied. One who has maintained the H1B most likely still will be in a legal immigration status (H1B) and will be able to remain in the United States on that basis. Otherwise, if s/he relies upon the I-485 as the sole basis for living and working in the U.S. (on an EAD), the individual will be out of status if the I-485 is denied. Depending on the situation, s/he may be required to depart the United States on short notice. There can be other reasons for maintaining H1B status, as well. These are often related to the needs of dependent family members who must be eligible for H-4 status.

Timing: Three Years Are Better than One

When there is an intention to continue H1B status after filing the I-485, timing is an important consideration. Many who have reached the I-485 stage have already used all or most of their allotted six years in H1B status. One who has used the allowed six years, however, may continue to extend his/her H1B status, if eligible pursuant to the American Competitiveness in the Twenty-First Century Act (AC21).

Circumstances for AC21 H1B Extensions Beyond Six Years

• If the adjustment applicant is the beneficiary of a labor certification (or an I-140 petition if a labor certification is not required) filed at least 365 days prior, s/he may receive a one-year H1B extension.
• If the adjustment applicant is the beneficiary of an approved I-140 petition, with a priority date that is not current according to the DOS visa bulletin, s/he may receive a three-year H1B extension.

Thus, under applicable law, filing an H1B extension under the AC21 provisions is best done when the priority date is not yet current. Eligibility for a full three-year extension is an important benefit. If an employer waits until the priority date is current to file the H1B extension, there is eligibility for only a one-year extension. Depending upon the movement of the cutoff dates, and any other delays or problems that arise in the I-485 case, this means that it may be necessary to file the H1B extension again in just one year. Filing an H1B extension each year makes the process much more expensive for all concerned.

File the H1B Extension ASAP

Those who have I-140 priority dates that are close to being current should consider the potential serious disadvantage of waiting to file the H1B extension (or of not filing it at all). If six or more years in H1B time has been used, filing the extensions while one’s priority date is not yet current (and the I-140 petition is approved) means eligibility for the three-year H1B extension, rather than only a one-year H1B extension. This can save time and money. For the employer, it ensures that a valuable H1B employee can continue to work even if the I-485/EAD is denied, while providing the H1B worker with greater peace of mind. While forward cutoff date movement may pave the way for green card approval and end the need for H1B status, it is better meanwhile to maintain and extend H1B status and time the filings to allow for three-year H1B approval.

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