Grand Rapids, MI asked in Immigration Law for Michigan

Q: How long can you have an H1B visa?

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1 Lawyer Answer

Carl Shusterman

Answered
  • Immigration Law Lawyer
  • Los Angeles, CA

A: H-1B visa holders are entitled to remain in the US in that status for a maximum period of six (6) years by statute. The six year maximum limitation can be reset upon the H-1B visa absence from the US for one year. Hence, once the H-1B visa holder completes her six (6) year term on H-1B visa, then departs the US for one full year, she is entitled to receive another six year term on H-1B visa. Such second six year term is subject to the numerical cap.

Prior to the enactment of the American Competitiveness in the Twenty First Century Act of 2000 ("AC21"), there was no mechanism in the law for workers to extend their H-1B visa status for more than the maximum six (6) year term. It mattered not whether the employer, or the US for that matter, had substantial interest in the alien's continued employment, once the six year term ended the alien and the employer both found themselves in a precarious position. Some of the solutions that were available at that time, was to change the alien's status to another such O-1 Visa (alien of extraordinary abilities), or J Visa (Exchange Scholar) if she qualified. Put succinctly, if the alien had not received her permanent residence by the end of the six year term or was not eligible or able to change her status, she was destined to return back to her home country for at least one year.

Eventually the US government realized that it had a substantial and in some cases irreplaceable resources in the employment of skilled workers which culminated in the enactment of AC21 which included specific provisions for the extension of H-1B visa status beyond six years. Below is an enumeration of some solutions available for H-1B visa holders, some are not necessarily through AC21 provisions. However, an H-1B visa holder should consult an experienced immigration counsel in order to explore solutions for extending her H-1B visa beyond the six year limitation.

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