what to do if h1 extension is denied

The increasingly-popular H-1B visa provides many advantages to those who hold information technology. Considering the long process involved with finding an employer, existence selected in the lottery, and then existence approved, the H-1B visa is very valuable. For that reason, it is understandable that many people would desire to await into an H-1B visa extension or renewal as they notice new employment, piece of work toward their light-green cards, or simply wish to continue working and living in the United states.

Under normal circumstances, a foreign national is initially granted a flow of stay of three years in H-1B status. When you near the end of that period, you lot will exist able to apply for an H-1B visa extension upward to a total of 6 years. An employer, even so, can but request a total of 3 years on any given H petition.

Information technology is important to note that for certain H-1B1 applicants from Chile and Singapore, the visa is only valid for a one-twelvemonth period of access, which can be renewed each yr.

Requirements for H-1B Visa Extension Beyond 6 years:

Sure H-1B holders who take had a Labor Certification Awarding (or an employment-based preference immigration petition if the strange national has been able to bypass the labor certification stage) pending for more than 365 days may be able to extend their H-1B visa beyond the six-year limit, in i-year increments. This can continue until the time a final decision is reached on the awaiting employment-based permanent residence instance.

Unfortunately, this 7th-year extension is limited to persons who are applying for their green cards through the employment-based category; information technology is not available to persons with pending family unit-based petitions.

Another provision of the current statute permits an H-1B extension across the 6th year if the H-1B visa holder has filed an employment-based preference petition but is unable to proceed with adjustment of status to permanent resident status because of a backlog in priority dates.

If you have an employment-based immigrant petition (I-140) filed with the USCIS and accept received approving but are waiting for your priority date to be current, your H-iv spouse and/or dependents are eligible to employ for employment authorization and get an EAD (Employment Authorization Document). This will allow them to work for any U.South. employer without brake (bated from jobs that require security clearance).

As long as y'all have an approved I-140, your H-iv holders will be able to extend their work authorization. Notwithstanding, if you were to change jobs or your employer were to withdraw your I-140, the EADs would still be valid until their expiration date, but they would be unable to exist renewed unless you had another I-140 canonical by that time.

Keep in listen that the current assistants is seeking to eliminate this H-4 EAD dominion , which would force H-4 holders to seek alternative means of employment.

H1B visa extension

Final Rule

On January 17, 2017, the Federal Register implemented a final rule that heavily affected many working visas, including the H-1B. In particular, information technology made an impact on visa holders who are attempting to apply for an H-1B extension while working toward lawful permanent resident status (greenish card).

When applying for an employment-based green card, your sponsoring employer must file an I-140 petition. Before the last rule, the regulations mandated that the I-140 needed to be submitted 365 days earlier the stop of the six-year maximum stay. Instead, the Federal Register has amended this to say that the petition must be filed at to the lowest degree 365 days before the beginning of your exemption.

H1B Renewal Procedure:

Extension requests are fairly similar to the original H-1B petition packet (i.e. required filing fees, new H forms, new LCA, new employer alphabetic character, photocopy of the H-1B approval notice from the original petition, equally well as the other supporting documents). Yet, but 1 copy of each document is required in an extension petition package. The extension request can be submitted up to 6 months before the engagement upon which the H-1B status is due to elapse (despite the fact that the I-129 instructions indicate a 4-month fourth dimension frame for this).

Your employer will accept to file a Form I-129 on your behalf and submit it with all of the necessary documents. A new Labor Status Application (LCA) for an extension across the initial three-yr menstruum must as well exist submitted by your employer along with the I-129. Proceed in mind that the onetime rule where an employer would be immune to submit an H-1B extension asking with a awaiting LCA does not utilize anymore. At present, your employer must wait and receive the approved LCA from the Department of Labor before filing an I-129 on behalf of an employee.

Past law, the timely filing of an extension request automatically "locks in" the foreign national's legal status and ability to work for the sponsoring employer for a menstruum of 240 days beyond the date upon which the H-1B status expires.

H-1B Visa Extension Options

In that location are several ways that you can receive an H-1B extension after 3 years:

1-Yr H-1B extension

The foreign professional may apply for an H-1B extension past 6 years in ane-twelvemonth intervals. This can occur if the PERM petition or the I-140 was filed 365 days before the 6-year expiration date.

iii-Year H-1B extension

The foreign professional is able to apply for an H-1B visa extension status for up to iii years if the bidder has an approved I-140 petition for the EB-1, EB-2 or EB-3 employment-based light-green card classifications and the immigrant visa number is unavailable.

This is usually granted and then that beneficiaries practise not accept to return home while they wait for their priority dates to become current. Because some people must expect over a decade for an EB-three immigrant visa number to become bachelor, this H-1B extension tin can exist very helpful.

"Recapture" Time

Many H-1B holders decide to travel internationally for extended periods of time. " Recapturing" that time spent abroad is one way to be granted an H-1B visa extension. The strange professional person may request an H-1B extension if he/she traveled outside the United states of america during the validity of the visa. The applicant is obligated to submit U.S. entry and render dates, I-94 copies, and related stamps.

Here is an example: If Sue, an H-1B worker, visits her home land of Germany for a total of two months during her stay in the U.S., she may be eligible for an H-1B extension of two months past the normal 6-twelvemonth limit provided that she tin give testify of her deviation.

Premium Processing

Fortunately, you are able to use the optional H-1B premium processing service to expedite your new petition'due south processing fourth dimension to fifteen calendar days. Once you accept been counted against the cap, y'all are no longer bound by the lottery dates (i.e. April 1 and October ane). This ways that using premium processing for an H-1B extension may be much more beneficial to your case than information technology would be if you were filing in the cap, where the mandatory six-month waiting period to start work usually renders premium processing obsolete.

To take advantage of this service, yous will demand to file an I-907 and $one,440 fee along with your I-129 petition. If the USCIS fails to process your petition in the promised time, you lot will receive a refund of your premium processing fee, and your petition will exist candy normally.

Keep in mind that the USCIS reserves the right to suspend premium processing for any fiscal year. In fact, they accept washed so for the 2018 and 2019 fiscal year in society to allow those without premium processing to take their petitions processed. Check with the USCIS news in social club to run across if this option is available in the year that you are filing.

H-1B Extension Documents Checklist

In order to apply for an H-1B visa extension or renewal, a foreign professional must provide the following extension documents:

For Employees:

Re-create of passport with the original H1B visa (if whatever)
The I-797 approval notice issued by the USCIS
I-94 Inflow/Departure form with a departure date that has non nevertheless expired.
Your resume or curriculum vitae (CV)
Evidence of employment demonstrated by one of the following:
- 3 previous paychecks
- a leave of absence letter or;
- a letter from the employer.
University bachelor's or advanced caste
Academy transcript
Bookish evaluation
Messages of recommendation from prior employers

For Employers:

Re-create of the job offering alphabetic character showing the salary offered, job title, and duties equally signed past both the employer and the H-1B employee
Job description
Company brochure or any marketing materials
Copy of the company's most recent Financial Statement, Business Plan, or Annual Study, if bachelor
Copy of the Manufactures of Incorporation, if available

H-1B Visa Extension Process for Spouses

Spouses of H-1B holders are eligible to extend their H-four upon the expiration of the 6-year limit. This extension is unremarkably granted as long as the H4 holder has not committed any crimes or violated the regulations of their visa. The extension should be filed with

Nonetheless, just considering the principal H-1B holder has received an extension, it does not automatically grant all fastened H4 holders extensions too. It is of import to remember that H-4 recipients must file the I-539 concurrently with the original H-1B extension application forth with proof of the relationship with the master H1B holder.

H-1B Extension Fees and Cost

In club to get your H-1B visa extension, your employer volition exist subject to the same fees that were involved with the original visa. These include:

The filing fee for another I-129 petition: $460
The amended Public Law 114-113 fee (if applicable): $4,000
The ACWIA fee: $750 or $1,500 depending on whether your employer has more or less than 25 employees.
The Fraud Prevention and Detection Fee: $500
Whatsoever optional fees such as
- Premium processing: $1,440 (annotation that this has changed since concluding year)
- Attorney fees: You can see the legal fees charged by VisaNation Law Grouping here.

Information technology is important to retrieve that your employer is responsible for almost all required fees . However, the premium processing fee can exist paid either by you or your employer. In this case, your employer must bear witness that you chose to pay the premium processing fee for your ain benefit and non for the employer's benefit. Speak with an immigration chaser to become a meliorate understanding of the fees involved with getting an H-1B visa extension.

When to File an H-1B Extension

But like every other U.S. visa, you must apply for an extension of your H-1B visa before the expiration of your electric current status. This must be washed six months before the expiration date indicated on your visa.

It is never a good idea to wait until your H-1B visa is most to expire to file for an extension. If you end up having to file after your visa has expired, you will run the risk of experiencing serious difficulties that could jeopardize your extension approving. If your visa has expired and you are considered "out of status", you will need to submit evidence of all of the following:

That you have maintained legitimate nonimmigrant status
That the delay was necessary or outside of your control
That the corporeality of time the delay took was within reason
That you lot have non violated your status under the H-1B visa
That you are not in the process of beingness removed from the U.Due south.

Equally you can see, proving this will be very difficult and volition price you both time and resources that are improve spent elsewhere. It is therefore advisable to avert this route by filing your renewal at the advisable time.

Notwithstanding, if you lot find yourself caught out of condition before filing for an extension, connect immediately with an immigration attorney to see what steps yous demand to have next in order to increase the chances of H-1B extension blessing.

H-four Visa Extension

If you are planning on bringing a spouse or dependent with you to the U.S. while you are under an H-1B visa, you can have them apply for an H-four visa. This secondary visa would be tied to your own visa status, meaning that if yous go an H-1B extension, so volition your H-four visa spouse or dependent. On the other hand, if your status is revoked or otherwise terminated, so is theirs.

Additionally, if the H-4 visa holder would like to work in the U.S., they volition need to obtain Employment Authorization Documents (EAD). In the aforementioned manner, the EAD will be valid for every bit long every bit the H-1B visa is valid and any extensions will also exist practical to the EAD. However, in order for your H-4 spouse or dependent to go an EAD, you (the H-1B holder) will demand to file an I-140 and have it approved past the USCIS.

What If I Get an H-1B Extension Denial?

First of all, you will want to decide whether your H-1B extension was denied or if information technology was rejected . Fifty-fifty though they seem like synonyms, in immigration constabulary terminology, in that location is a crucial difference between these two terms.

The USCIS processes H-1B extension petitions (and all visa petitions) in 2 stages. During the start stage, an evaluating officeholder will make an initial inspection of your case to ensure that your petition is completely filled out and accurate, that your fees are right and filed to the right places, and that you have the documents and supporting bear witness required for an H-1B extension. If your petition packet is missing whatever of these elements, information technology volition likely be rejected. If this happens, y'all volition non receive a refund, but the all-time form of activity is often to gear up the error or omission and refile your petition with new fees.

For the second stage, an evaluating officer volition take a close expect at your petition and supporting documents to make up one's mind whether or not you and your employer are qualified for an H-1B extension. If not, then the officer is likely to deny your petition. Fixing this is not as elementary every bit refiling, equally your case will even so not exist considered qualified to merit the extension.

Extension Denial Reasons

If you are concerned that your H-1B visa extension will exist denied, here are some common reasons why the USCIS evaluating officer might make such a conclusion for your case.

Specialty Position – If y'all have changed jobs with your sponsoring employer since obtaining your H-1B, there is a possibility that the USCIS may not deem it a specialty position. To avoid this, stay within the same position or line of work that you used to get your H-1B or consult with an immigration attorney to see if a new position volition result in an extension deprival down the road.
Employer-Employee Relationship – The USCIS requires that the employer must exist in complete control of the H-1B holder'southward employment. The employer must take the power to hire and fire the employee too equally control their salary, work location, and solar day-to-day activities. This rule mostly affects those that are hired through staffing agencies and those that attempt to be sponsored by their own companies.
Visa Status – Maintaining your visa status is crucial to avoiding extension denials. Committing crimes in the U.S. is grounds for deportation and certainly grounds for an H-1B extension denial. Also, working without say-so or dodging taxes can easily be reasons for the evaluating officer to deny your extension.

What To Practise After A Deprival

If your extension petition is denied or rejected, you will likely have a few choices available to you.

You can identify the event that led to the denial of your petition and refile.
You can file a legal motion with the help of your attorney
You lot tin petition for a different visa or green card
You can exit the country

Your deprival or rejection discover will probably land that appealing the decision is not an option. Fortunately, the USCIS volition likely give you the reason for your deprival, though they will also notation that no appeal can be made to a third political party concerning the decision.

Legal Motions

Filing a legal motility is a delicate procedure that should not exist done without the assistance of a qualified chaser. There are two types of legal motions that can be filed in the event of an H-1B extension denial.

The first is a motion to reopen your instance. This is put into effect normally when some new testify comes up that, if viewed with your case, might change the negative conclusion. Therefore, you are requesting the evaluating officer to reopen the case and re-examine it with this new data.

The 2d motion is a motion to reconsider. This is something you would utilize if your attorney believes that the evaluating officeholder was wrong in his or her determination to deny your H-1B extension. However, your attorney must exist able to present an argument that the extension should be approved from a strictly legal perspective.

Other Options

If your H-1B extension is denied, and then y'all may want to consider applying for a different visa or green card that matches your qualification. For nonimmigrant visas, you have:

TN visas for professional workers from Canada and Mexico
J-1 visas for exchange visitors such as professors and medical students
O-ane visas for those with extraordinary ability
Fifty-1 visas for the specialized employees, managers, and executives of multinational companies.

If yous are interested in making your stay more permanent, you can consider applying for a dark-green card such equally the:

EB-ane light-green card for those with boggling achievements, outstanding researchers and professors, equally well as the managers and executives of multinational companies.
EB-2 for those with exceptional ability, those that accept an advanced degree, and those that qualify for a National Interest Waiver.
EB-3 for professional person workers (those with available's degrees), skilled workers (those with more than than two years of relevant piece of work experience), and other workers (those with fewer than two years of experience).

The H-1B Extension 240-Day Rule

If y'all have reached the typical six-yr limit on your H-1B visa and take applied for an extension by this limit through an approved I-140, yous are still discipline to your visa validation menstruation.

Co-ordinate to the 240-Twenty-four hour period Rule, an H-1B holder with extension awaiting will be allowed to continue working under the following conditions:

The H-1B employee still has a valid condition while filing an extension petition.
The sponsoring employer files the extension petition on time before the expiration of the current status.
The USCIS receives the petition on time earlier expiration of the employee'due south electric current status.
The H-1B continues to piece of work for the sponsoring employer who has filed the extension.

Nevertheless, while the best advice is to apply for your extension well earlier your validation menstruum ends, you cannot predict or control how long it volition accept for your H-1B extension to be processed. Fortunately, the USCIS has a provision for situations where your H-1B validation flow expires while the petition is beingness candy.

The 240-day rule states that you are permitted to remain in the U.Due south. working for your electric current employer throughout this menses. If your petition is approved during this fourth dimension, so your 240-mean solar day work authorization will end, and your H-1B extension will begin. Even so, if your petition is denied, this provision will immediately end, and yous will need to cease working and make plans for alternatives or to go out the state.

What Happens If My Extension Petition Is Nonetheless Pending Later 240 Days?

If y'all have received neither the approval nor denial notice 240 days afterward submitting your extension petition, your correct to go on working will end. However, you will still take the legal right to go on living in the U.s.a., waiting for the USCIS to make a decision on your case.

Your stay during this flow volition be considered every bit authorized stay. If your extension request is then canonical, then you will take the right to continue working and living in the U.Southward. However, if you receive a denial discover, your stay from that moment will get unlawful presence, as your period of authorized stay ends the very day the USCIS notifies you of the denial. You will need to depart the United states of america immediately to avoid violating immigration law and accruing unlawful presence.

Does 240-Day Rule Touch on H-1B Transfer, Extension, or Amendment Petitions?

No, the 240-24-hour interval rule only applies to or affects H-1B extension. If yous file your transfer petition before the expiration of your I-94 and information technology is still awaiting afterward 240 days rules, you lot will non be denied the correct to continue working. Unlike with an H-1B extension, filing for an H-1B transfer allows you lot to continue working while waiting for the USCIS to brand a decision on your petition.

H-1B Extension With Amendments

When it comes to an H-1B extension with amendments and the 240-Day Rule, there is a grey area that tin be interpreted in dissimilar ways. You still have the legal correct to continue living in the United States after 240 days of waiting for a decision. As well, you may still be able to continue working with amendments added to your extension petition, fifty-fifty subsequently the 240 day period. Nevertheless, yous and your employer will need to consult an immigration attorney to ensure that you are moving forward correctly.

How to Calculate H-1B 240 Days

The 240-day menses begins starting on the engagement stamped on your Form I-94, Difference Record, which is the day your authorized H-1B menses of stay expires. For example, if your Course I-94 expires on February 1, 2020, you will need to add 240 days starting from Feb 2.

Can I Travel Under the 240-Day Rule?

Leaving the U.S. during this H-1B extension provision may issue in you non being able to return to the country until you receive your new H-1B visa. Therefore, it is not appropriate to travel during this time. If you need to travel, then y'all may want to consider using premium processing to expedite the adjudication of your extension petition.

How We Can Help You

Obtaining an H-1B visa is no pocket-size feat, especially when y'all consider the odds of being selected in the lottery. That'due south why you want to treat your hard-earned visa with care. Making any changes such as transfers or extensions is all-time washed with the help of a qualified immigration chaser to help you lot avoid unnecessary losses in time, try, and coin.

VisaNation Law Group'south H-1B attorneys are highly skilled in assisting clients with required documentation for H-1B visa renewals and extensions. They work with y'all every pace of the way to brand sure that everything is done right the first time, and they will fight for you through any obstacle that may arise.

VisaNation Police Group immigration lawyers specialize in employment-based immigration matters and tin can assist you lot determine if you meet the qualifications necessary for the specific H-1B extension. To contact usa, simply make full out our contact form to schedule your consultation.

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