Everything You Need to Know About the H-1B 6-Year Limit 

This is one of the most common visas for foreign workers, especially skilled workers to immigrate to the United States and work in areas such as technology, medical care, engineering, and more. But if you are already here in the US on an H-1B, know the 6-year maximum permissible duration of your stay and what your options are to extend beyond that. Here’s a post where we’ll tell you why there’s an H-1B 6-year limit, and what you can do if you’re approaching it. 

How Much Time is the H-1B 6-Year Limit? 

Immigration laws in the US stipulate a maximum amount of time that a foreign worker can be in the United States on an H-1B visa. The maximum amount of time a person can be an H-1B is six years. Once there, the worker is either out of the US or must seek a new visa for an extension. 

This 6-year cap is there to ensure the H-1B remains for a short time because it was originally established to fill U.S. job gaps with highly skilled professionals, not to provide permanent immigration status. 

Why A 6-Year Curve? 

The H-1B visa program was created to solve temporary labor shortages in the United States. The government had instituted the 6-year threshold to ensure that the aliens were not coming in to permanently plug a long-term labor shortage but were able to serve as short-term vacancies in the labor market. This is meant to give employers a way to hire workers for the jobs they can’t fill in-country, but make those workers eventually leave the US labor market unless they apply for permanent residency (a green card) or another long-term visa. 

What is the H-1B 6-Year Cap? 

You don’t begin the 6-year limit at the time of your entry into the U.S. It’s based on the total time you are in the United States working for H-1B status. Here’s how it works: 

  • The First 3 Years of H-1B: Once you are approved for an H-1B visa, your initial time in the US is typically 3 years. 
  • H-1B Extension: After the initial 3 years, you can also extend your H-1B for an additional 3 years, 6 years. 
  • Six Years After the 6-year mark: You’re not generally allowed to continue on your H-1B after you hit the 6-year mark unless you attempt to extend or revert status. 

After 6 years, you will either have to leave the U.S. or change your visa status to stay longer. 

Exemptions and Alternatives to the 6-Year Limit

While the 6-year period is too much, there are some exceptions and ways to remain in the US beyond the 6-year window. Here are some of the most prevalent: 

1.  H-1B Extensions Subject to pending Green Card Status. 

You can also try to extend your H-1B beyond the 6 years if you’re working towards a green card. Specifically, if:  

  • You have your PERM Labor Certification (green card’s first step) waiting. 
  • You received your I-140 Immigrant Petition (but you’re not yet on your green card). 

These extensions let you stay in the United States until your green card is issued. You don’t have a hard cap on how long you can extend your H-1B in such cases, but extensions typically come in 1-year increments. 

2.  Migration to a New Visa Status. 

If you can’t get your H-1B visa extended any longer, you can change your status to another visa. Some potential visa options include:  

  • F-1 Student Visa: If you go back to school and study full time. 
  • L-1 Visa: If you are moved to a US office of your current employer (especially if the employer is international). 
  • O-1 Visa: People who are highly talented in their field, like top scientists, artists, or tech and business leaders. 

3.  Time Spent Outside the U.S.  

You can start the 6-year clock again if you have been living overseas for much of your H-1B years. Your overseas time will not count toward your H-1B, so you can still get a new H-1B once you’re back in the US. This is sometimes called the “time abroad” option. You have to have been out of the US for at least a year to reset the clock. 

The Reasons the H-1B 6-Year Requirement Is Important. 

The H-1B 6-year cap is something you should be aware of if you are employed in the U.S. on an H-1B visa. The time at this threshold is a “go” date, but if you act wisely you can still work in the US even when your H-1B visa runs out. 

When you’re on the 6-year mark, you might want to: 

  • Check your green card and if you currently have a PERM Labor Certification or I-140 petition. 
  • Look for alternative visas like O-1 or L-1 to stay legally. 

Consequences of Overstaying the 6-Year Limit on H-1B Visas

Overstaying the 6-year limit on an H-1B visa can lead to severe consequences for foreign nationals in the United States. Understanding these repercussions is crucial for maintaining legal status and planning your next steps effectively.

Unlawful Presence

When you overstay your H-1B visa, you begin to accumulate “unlawful presence” in the U.S. This status can have significant implications:

  • Definition: Unlawful presence refers to the time spent in the U.S. after your visa has expired or after your authorized stay has ended.
  • Consequences: Accumulating unlawful presence can lead to bars on re-entry, which can affect your ability to return to the U.S. in the future.

3-Year Bar

If you overstay your H-1B visa for more than 180 days but less than one year, you may face a 3-year bar from re-entering the U.S. This means:

  • Impact of Overstay: If you leave the U.S. after this period, you will be prohibited from returning for three years.
  • Planning Ahead: It is essential to manage your visa expiration and plan your departure accordingly to avoid this consequence.

10-Year Bar

For those who overstay their visa for more than one year, the consequences are even more severe:

  • 10-Year Bar: You could be barred from re-entering the U.S. for ten years.
  • Long-Term Implications: This extended bar can significantly impact your career and personal life, making it crucial to address your visa status before reaching this threshold.

Given these potential consequences, it is critical to manage your H-1B visa expiration proactively and leave the U.S. before accumulating unlawful presence.

Switching to a Different Visa

If you are nearing the end of your 6-year limit and are not eligible for an extension, exploring other visa options may be beneficial:

L-1 Visa

The L-1 visa is designed for intracompany transferees:

  • Eligibility: If you are being transferred to a U.S. branch of your employer, this option may be available.
  • Benefits: The L-1 visa allows you to continue working in the U.S. while maintaining legal status.

O-1 Visa

The O-1 visa is for individuals with extraordinary abilities:

  • Who Qualifies: This visa is suitable for individuals who have demonstrated exceptional skills in their field, such as arts, sciences, business, or athletics.
  • Advantages: The O-1 visa does not have a strict duration limit like the H-1B and can provide greater flexibility.

F-1 Visa

If you wish to pursue further studies:

  • Switching to F-1: You might be able to switch to an F-1 student visa if you enroll in an accredited program.
  • Student Benefits: The F-1 visa allows for optional practical training (OPT), providing work opportunities related to your field of study.

It is advisable to consult with an immigration attorney when considering these options to ensure compliance with immigration laws and regulations.

What About H-1B Dependents (H-4 Visa)?

If you have dependents on H-4 visas (spouse or children under 21), their status is closely tied to yours:

Spouses and Children

  • Duration of Stay: H-4 dependents are generally allowed to stay in the U.S. for the duration of their H-1B status.
  • Departure Requirement: If you reach the 6-year limit and need to leave the country, your dependents must also depart.

Work Authorization for H-4 Visa Holders

In certain circumstances, H-4 spouses may be eligible for work authorization:

  • I-140 Approval: If your I-140 petition is approved, your H-4 spouse can apply for an Employment Authorization Document (EAD), allowing them to work in the U.S.

This provision provides valuable support for families during transitions in immigration status.

Green Card and H-1B: How the 6-Year Limit Affects Your Path to Permanent Residency

Many H-1B holders aim to transition to a green card, but timing can present challenges due to various factors:

The Link Between H-1B and Green Card

The process of moving from an H-1B visa to a green card involves several steps:

  • Labor Certification: Typically, employers must go through labor certification before filing an I-140 petition.

Priority Date Retrogression

For individuals from countries with high demand for green cards (like India and China), priority date retrogression can complicate matters:

  • Backlogs: Many applicants face long wait times due to backlogs in processing green cards.

Extensions Based on I-140 Approval

If your I-140 petition is approved but your priority date is not current:

  • 3-Year Extensions: You may be eligible for 3-year extensions of your H-1B status while waiting for your priority date to become current.

Given these complexities, it’s crucial to start the green card process early. Delays in labor certification or green card processing can significantly affect your ability to remain in the U.S. beyond the 6-year limit.

How Law and Visas Can Help?

At Law and Visas, our team of expert immigration consultants is here to make your travel to the U.S. straightforward and successful. Whether you’re applying for an E-2 Visa or an O-1 Visa, we handle every step—from preparing your application to gathering the required documents.

Our Immigration Consultants and Lawyers ensure that your application meets the highest standards, with no details missed. We’ll also keep you informed throughout the process and coordinate with the immigration office or embassy on your behalf.

Law and Visas has a strong record of helping clients secure the visas/permits they need to visit the United States. You can call us today at +234 812 5505 986 to learn how we can help you.

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