9999 Bellaire Blvd. Suite 360
Houston, Texas 77036
Tel: 713-339-4200,1-800-281-7400
Fax: 713-339-4299, E-mail: info@linlawfirmusa.com

    E-2 Visa (Treaty Investors)
    L-1 Visa (Intra-company Managers)
    H-1 Visa (Speciality Occupation)
    H-2B Visa
    J-1 Visa (Exchange Scholars)
    O-1 Visa (Extraordinary Ability)
    K-1 Visa (Fiance)

   EB-1 (Extraordinary Ability/Outstanding Researcher/Professors)
    EB-1 (Managers)
    EB-5 Investor Immigration Resource Center **new**
    National Interest Waiver
    Labor Certification - PERM
    Schedule A Position - Physical Therapist
    Religious Immigration
& R-Visa
    Family Based Immigration

    DACA - Deferred Action EAD for Dreamers**new**
    Asylum Frequently Asked Questions

    Immigration Detention
    Bond Hearing With Immigration Court
    Immigration Bond
    Posting Bond and Condition of Release from Detention
    Removal Proceeding
    Expedited Removal
    Why Lin & Valdez LLP

Substituting H-1B Can Apply for Extension After the Six-Year Period

 We were recently contacted by a client for the answer to the following scenario:


The client is in H-1B status and he was recently employed by a new employer.  However, he has been in H-1B for almost 6 years.  Luckily, the new employer has a labor certificate application pending exactly for the position the client is hired for, and the person the labor certificate was originally filed for left the company because of marriage with a U.S. citizen.  The LC application has been pending for almost two years and is likely to be approved in the upcoming months.  The client will substitute the leaving employee and apply for adjustment of status.  The question is whether he can apply for extension of his H-1B based on his substitution for the labor certificate and I-485 application.


The answer is yes. 


Under The American Competitiveness in the Twenty-First Century Act (AC21), H-1B holders can apply for extension of H-1B status one-year at a time after the six-year period if:


(i)         the H-1B holder is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of status; and

(ii)        365 days or more have passed since the filing of a labor certificate application that is required for the alien to get employment-based green card, or 365 days or more have passed since the filing of the I-140 employment-based immigrant petition.


AC21, however, does not clarify whether a person can apply for the one-year extension if he has labor certificate application filed and pending for over one year.  That issue has been addressed since following the passage of AC21, the Congress in November of 2002 passed "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215).  According to the Act, H-1Bs can extend H-1B one year at a time as far as the labor certificate is pending for over 365 days. The extension can be filed even if the labor certificate has not been approved.


The extension provision applies to substitution situation like the client’s.  The key, however, is to prove that the client has substituted the employee who left.  Therefore, either an ETA 750B must be filed with the State Employment Agency, or immediately after the LC was approved, the employer should file the I-140 application for the client.

Back to H-1 PERM Menu Back to Top

© 2019 Copyrights Lin & Valdez L.L.P. All Rights Reserved | Sitemap

  Case Status Online
  USCIS Processing Times
  Visa Bulletin
Spanish Corner
  Visa E-2
  Preguntas Frecuentes sobre la Visa E-2
  Sobre Nosotros

Approval Notices
  03/09/19 Asylum, Granted by Asylum Office
  03/01/19 E-2 Visa Granted by Consulate in Japan
  02/25/19 Labor Certification, Approval
  02/15/19 EB-3, Approval
  02/15/19 E-1 Vosa Granted by Consultate
  02/01/19 E-2, Approval
  02/01/19 EB-1(C), Arpproval
  01/26/19 I-140 EB-3, Approval
  01/12/19 E-2, Approval
  01/02/19 H-1, Approval
  12/22/18 EB-1(a), Approval
  12/02/18 L-1 for Green Card, EB-1(C), Approval
  12/02/18 H-1, Approval
  11/05/18 Asylum, Granted by Court
  11/02/18 I-601A Waiver, Approval