An individual on H-1B may only be admitted for 6 years. This limit also applies to spouses and children on H-4. Due to the heavy backlog for Green cards for Indian Nationals, most individuals on H-1B find themselves needing to extend their H-1B beyond the 6-year limit.
Although a person who leaves the U.S. and remains outside of the country for one year may begin a new 6-year period, in order to be eligible for another 6 years they must once again subject themselves to the H-1B lottery and submit a cap case.
It is therefore important for the Employer to start the PERM/ I-140 process early on to avoid a situation where the employee uses the full 6 years on H-1B and is not eligible to extend their H-1B beyond that.
In order to be eligible to extend the H-1B beyond the 6-year limit an employee needs to meet one of the following criteria under the American Competitiveness in the 21st Century Act (AC21):
1. 365 days or more have passed since the filing of the employee’s Labor Certification (PERM filing), I-140 or employment-based I-485; or
2. Employee has an I-140 approval and is not able to file to adjust status to that of a permanent resident (based on their current priority date).
One- year extension
Based on the 365 day rule an employee is entitled to a 1-year extension of their H-1B.
Three- year extension
Based on an I-140 approval, an employee is entitled to a 3-year extension of their H-1B.
Both extensions equally apply to spouses and childern on H-4.
Priority date retention
Remember if an individual has an approved I-140, provided this has been approved for 180 days or more, this will not be revoked even if the employer withdraws the petition. This means an employee will remain eligible for a 3-year extension, provided that the I-140 was not withdrawn for fraud, material misrepresentation, material error, invalidation or revocation of the underlying PERM application.
If the I-140 is withdrawn before to the 180 days, then USCIS will revoke the petition and extensions beyond the 6 years will not be possible.
Ensure the PERM is filed by the 5th year anniversary
Based on 1. above, it is therefore advisable for the employer to file the PERM at least 365 days before the employee’s 6 years on H-1B is up. In other words, employers should file prior to the employee’s 5th year anniversary. Bear in mind that the recruitment and prevailing wage determination can take around 4 months it is best to start the process before the employee hits the 4.5 year- mark.
Remember that PERMs are subject to random audits as well as targeted audits. If you file a PERM after an employee has been on H-1B for over 5 years and the case gets audited, then the employee may find themselves in a position where they cannot extend the H-1B beyond the 6 years. This could result in them having to leave the U.S., wait until both the PERM and I-140 is approved and then file new H-1B, not subject to the cap, before they can return. This can all be avoided by starting the PERM process early.
What can I do if the employee is already past the 5- year mark?
There is nothing to stop you from starting the PERM process if the employee has already been on H-1B for more than 5 years. PERM and I-140 approval can be achieved in 7-9 months if there is no audit so you should still consider starting the PERM process. However, as described above if the PERM is audited there is a strong likelihood that the employee will have to spend some time outside of the U.S. until the PERM and I-140 is approved. However, if the employee’s spouse is also on an H-1B (or other valid non-immigrant status), then the employee may wish to consider filing a change of status to avoid having to leave. Once the PERM and I-140 is approved the employee can then apply to go back on H-1B, based on the I-140 approval.
Capturing time outside of the U.S.
Only time in the U.S. spent in valid H-1B status counts towards the 6- year limit. Therefore, if the employee received their first H-1B approval 6 years ago, if they have taken several vacations and/or spent a significant amount of time outside of the US this can be recaptured. 6 years is 2190 days so you will need to calculate the number of days actually spent in the U.S. and deduct this number from 2190. The number of days leftover can always be recaptured by filing a further H-1B extension.
Important points to note when filing a PERM/I-140
1. Review financial ability before starting the process. Even though an Employer is not required to demonstrate the financial ability to pay the proffered wage until the I-140 stage, the Employer has to show the financial ability to pay as of the date the PERM was filed, i.e. the "priority date". The financial ability component should therefore be thoroughly reviewed PRIOR to starting the PERM process to ensure there are no issues at the I-140 stage.
2. Ensure that the recruitment is consistent. Although most of the time the Employer will not have to send copies of the recruitment to DOL, as the PERM is filed electronically, in the event of an audit DOL will require copies of all of the recruitment. Any inconsistencies in the recruitment can lead to a denial.
3. Review resumes from potential applicants within 14 days of receipt. Interview all potential applicants to ensure they do not qualify for the position and keep proof of communications with all applicants (emails, phone logs, letters, etc.) In the event of an audit all of this will need to be sent to DOL to demonstrate that you as the Employer have made a good faith effort to recruit U.S. workers. Please note that the definition of U.S. workers is not limited to citizens and includes green card holders, asylees, refugees etc.
4. Prepare a detailed recruitment report prior to filing the PERM and maintain an Audit file.
5. It may sound simple, but ensure that the employee is qualified for the position for which you are advertising. If your employee doesn’t possess the required degree, experience and skills then you risk having the PERM and/or I-140 denied.
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October 21, 2019
For further information please contact Attorney Chris Prescott at email@example.com.