H1B Renewal After 6 Years: Do You Need Another Lottery Without an i140?

Key Takeaways:

1. The H1B visa allows foreign professionals to work in the US, but after six years, re-entering the lottery is often needed.
2. Extensions beyond six years are possible if an I-140 petition is approved, leading to a green card.
3. Planning ahead and starting the green card process early can help avoid re-entering the H1B lottery. Secure the approval of an I-140 and be aware of visa availability.

H1B Lottery System: What Happens After 6 Years?

The H1B visa is a non-immigrant visa that allows U.S. companies to employ foreign professionals in specialty occupations. If you’re on an H1B visa, you likely know that it has a typical initial validity of up to three years, which can be extended for another three years. However, what happens after those six years have elapsed, and you don’t have an approved I-140 immigrant petition? This can be a critical concern for many H1B professionals. Let’s break down the process and explore whether you’ll need to participate in the H1B lottery system again.

Understanding the H1B Renewal Process After 6 Years

Extensions Beyond Six Years

The American Competitiveness in the Twenty-First Century Act (AC21) allows H1B holders to extend their status beyond the six-year maximum in certain circumstances. One common scenario involves having an I-140 petition approved by U.S. Citizenship and Immigration Services (USCIS). The I-140 form is the immigrant petition for an Alien Worker, and its approval is a step towards obtaining a Green Card.

Do You Need to Re-enter the H1B Lottery?

For those whose I-140 application has not been approved by the end of their sixth year on an H1B visa, they often ask: “Will I have to go through the H1B lottery again?” The straightforward answer is that yes, if you cannot extend your H1B status beyond the six-year limit and you still wish to work in the U.S. on an H1B visa, you would typically need to be selected in the H1B lottery system again.

The H1B lottery is a process implemented by USCIS due to the annual limit on the number of new H1B visas issued. The lottery is designed to randomly select applicants for a limited number of visas.

Considerations for H1B Renewal

• Departure from the U.S.: Once the six-year limit is reached, H1B holders generally must leave the U.S. unless they have secured another valid legal status. After a minimum one-year stay outside the country, you could potentially qualify for a new H1B visa and would have to go through the lottery system again.

• The Cap-Gap Extension: Some H1B workers may be able to benefit from the “cap-gap” extension if they are in the process of transitioning from an F-1 student visa to an H1B visa. However, this won’t apply to most professionals who are already on an H1B visa and reaching their six-year cap.

• Employer Petitions: If you have an I-140 petition filed by an employer before the end of your fifth year on H1B, and it remains pending 365 days after filing, you may qualify for yearly extensions of your H1B status until your Green Card process is complete, even if the I-140 has not yet been approved.

• Recapture Time: If you have spent time outside the U.S. during your H1B tenure, you may be able to “recapture” that time and extend your H1B status beyond the six-year limit.

Planning Ahead for I-140 Approval

The reality is that the process of getting an I-140 approved can take time, especially considering the per-country visa caps and backlogs. To avoid being in a situation where you have to re-enter the H1B lottery system, it’s advisable to start the Green Card process early in your H1B tenure.

• Benefit of Approved I-140: “An approved I-140 is beneficial because it can offer job flexibility under AC21 and serves as a critical milestone in the path to permanent residency,” explains an immigration attorney.

• Priority Dates and Visa Bulletins: Keep an eye on priority dates and regularly check the Visa Bulletin issued by the Department of State to gauge the potential timeline for visa availability based on your country of chargeability and preference category.

The Potential Need for the H1B Lottery

The uncertainty of the H1B visa can be daunting for many, especially when you’re established in your career and life in the United States. “The idea of going through the H1B lottery again after six years can be stressful, but planning ahead and understanding the process can help alleviate some of the anxiety,” says an H1B visa holder who faced similar uncertainties.

Helpful Resources

For current information and helpful resources on H1B visas and the lottery process, visit the official USCIS website here and access the Department of State Visa Bulletin here for the latest on priority dates.

Conclusion

In conclusion, if you don’t have an approved I-140 after six years on an H1B visa, re-entering the H1B lottery might be in the cards for you. With careful planning, understanding of the rules, and early initiation of the Green Card process, however, you may prevent this situation from arising. Remember to seek counsel from an immigration lawyer and stay updated with USCIS guidelines to navigate your H1B journey as smoothly as possible.

Still Got Questions? Read Below to Know More

If my H1B expires and I return to my home country, how long do I have to wait before I can apply for a new H1B visa?

If your H1B visa expires and you return to your home country, you can apply for a new H1B visa as soon as the next H1B cap season begins. The H1B visa cap is a limitation on the number of H1B visas that are issued each year. The United States Citizenship and Immigration Services (USCIS) starts accepting H1B petitions on April 1st of each year for the fiscal year that starts on October 1st. However, you need to ensure that an employer is ready to sponsor you and file a petition on your behalf.

It’s important to note that if you were already counted against the H1B cap during your previous stay in the United States, you may not be subject to the H1B cap if you haven’t exhausted the maximum period of stay allowed under the H1B program which is typically six years. This means you could potentially apply for a new H1B visa without waiting for the cap season if you are cap-exempt.

For official and detailed information regarding the H1B visa application process, cap count, and requirements directly from the United States Citizenship and Immigration Services, you can visit their official website through this link: USCIS H1B Fiscal Year (FY) 2023 Cap Season. Remember to stay updated with the latest immigration news and announcements from USCIS, as the rules and procedures are subject to change.

Can my spouse work in the U.S. if I have to go back to my home country after my H1B expires and I don’t have an approved I-140?

If you’re on an H1B visa in the United States and it expires, generally you are expected to leave the country unless you’ve applied for a visa extension or a change of status. Now, regarding your spouse’s ability to work in the U.S., it largely depends on the type of visa they hold.

If your spouse is currently in the U.S. on an H-4 visa, which is typically issued to immediate family members of H1B visa holders, they may have been eligible to apply for Employment Authorization (EAD) if you had an approved I-140 petition (an immigrant petition for alien worker), which signals the intention of applying for a green card. However, as you’ve indicated there is no approved I-140, if you leave after your H1B expires, your spouse’s H-4 status, as well as any work authorization they may have, is directly tied to your H1B status. Without an H1B extension, change of status, or approved I-140, your spouse generally cannot continue to work once you’ve departed and your visa status has lapsed.

For the most accurate and up-to-date information, always refer to the United States Citizenship and Immigration Services (USCIS) official resources. You can visit the USCIS website for more details on H-4 visas and employment authorization: USCIS H-4 Visa and USCIS Employment Authorization for Certain H-4 Dependent Spouses. It’s crucial to consult with an immigration lawyer for personal circumstances as immigration laws and regulations are complex and subject to change.

What options do I have to stay in the U.S. if I reach the 6-year limit on H1B and haven’t applied for a Green Card yet?

If you’re nearing the 6-year limit on your H1B visa and haven’t yet applied for a Green Card, there are several options to consider:

1. Extension Beyond the 6-Year Limit: Sometimes, H1B holders can extend their stay beyond six years if:
   • A labor certification application or I-140 petition was filed at least 365 days before the 6-year limit, allowing for a 1-year extension.
   • If an I-140 petition has been approved and you’re unable to apply for an adjustment of status due to per-country visa limits, you may be eligible for a 3-year extension, under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act.
2. Change of Status: You might be able to switch to a different visa type, for example:
   • F1 visa, if you intend to become a full-time student.
   • O1 visa, if you have extraordinary ability in your field.
   • L1 visa, if you can be transferred to a managerial or executive position within the same company but in a different country, and then return to the U.S. on an L1 visa.
3. Depart and Reapply: If none of the above options are feasible, you may leave the U.S. at the end of your H1B term and stay outside the country for one year. After this, you could qualify for a new 6-year H1B period.

Always check the most current regulations on the U.S. Citizenship and Immigration Services (USCIS) website or consult with an immigration attorney for personalized advice. Here’s the relevant link to USCIS for H1B extension information: USCIS – H1B Extension.

Remember to plan well in advance and explore these options because the immigration process can be complex and timing is crucial.

If I switch jobs while on H1B, does the six-year clock reset or continue from where it left off with the previous employer?

The H1B visa is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. When you switch jobs on an H1B visa, the six-year clock does not reset; it continues from where it left off with your previous employer. Here’s what you need to know about your H1B status when changing jobs:

1. Your H1B status allows for “H1B portability,” which means that you can change jobs without affecting the original six-year limit on your H1B visa. The remaining time you have is carried over to your new employer. For instance, if you have already used four years of H1B status with your old employer, you will have two years remaining with your new employer.
2. It’s important to ensure your new employer files an H1B Transfer petition with the United States Citizenship and Immigration Services (USCIS) before you start working for them. This process is formally known as an H1B Change of Employer petition. You should not begin your new employment until the new H1B petition is filed, but you can start upon filing due to H1B portability rules, without waiting for the approval.

Here’s what USCIS states about H1B portability:

“The portability provisions of the American Competitiveness in the Twenty-first Century Act (AC21) allow an H1B worker to begin new employment upon the filing of a new petition by a prospective employer if certain requirements are met.”

For authoritative information and to ensure compliance with the latest regulations, always refer to the official USCIS website or consult with an immigration attorney. You can find more information about H1B visa transfer and portability on the USCIS H1B page.

Remember, certain circumstances can allow for an extension of the H1B status beyond six years, such as when a permanent residency (green card) process has reached a certain stage. Always check with an immigration professional or the USCIS for guidance specific to your situation.

Can I apply for the H1B lottery from within the U.S. if I change to a different non-immigrant visa status after my H1B expires?

Yes, you can apply for the H1B lottery from within the United States even if you change to a different non-immigrant visa status after your previous H1B expires. Here are the key points you need to know:

1. Changing Status: When your H1B expires, you can switch to another non-immigrant status as long as you comply with the conditions of the new visa. For instance, you could move to an F-1 student visa or a B-2 tourist visa, provided you meet the requirements for those visas.
2. Entering the H1B Lottery: To re-enter the H1B lottery, also known as the H1B cap, your prospective employer needs to file an H1B petition on your behalf when the annual lottery registration period opens, typically in March. You do not apply for the lottery on your own; rather, your employer must do so for you.
3. Maintaining Legal Status: It is crucial that you maintain lawful status while in the U.S. and during the H1B application process. If you fall out of status, you may face challenges that could affect your eligibility for the H1B visa or other immigration benefits.

The U.S. Citizenship and Immigration Services (USCIS) is the official source for H1B visa information. For detailed guidance, refer to their H1B specialty occupations webpage: USCIS H1B Specialty Occupations

Remember, each immigration situation is unique, and it’s always best to speak with an immigration lawyer for personalized advice. They can provide you with the most current and applicable information for your case.

Learn Today:

Glossary or Definitions:

1. H1B Visa: A non-immigrant visa that allows U.S. companies to employ foreign professionals in specialty occupations.

2. I-140 Petition: The immigrant petition for an Alien Worker, which is a form filed with U.S. Citizenship and Immigration Services (USCIS) to initiate the process of obtaining a Green Card.

3. Green Card: Commonly known as a Permanent Resident Card, it is an identification card that proves an individual’s status as a lawful permanent resident of the United States.

4. American Competitiveness in the Twenty-First Century Act (AC21): A legislation that allows certain H1B visa holders to extend their status beyond the six-year maximum in specific circumstances, such as having an approved I-140 petition.

5. H1B Lottery System: A process implemented by USCIS to randomly select applicants for a limited number of H1B visas, as there is an annual limit on the number of new H1B visas issued.

6. Cap-Gap Extension: An extension that allows certain F-1 student visa holders who have applied for an H1B visa to bridge the gap between the expiration of their F-1 status and the start of their approved H1B status. This does not apply to most professionals already on an H1B visa and reaching their six-year cap.

7. Employer Petitions: When an employer files an I-140 petition on behalf of an H1B holder before the end of their fifth year on H1B, and it remains pending 365 days after filing, the H1B holder may qualify for yearly extensions of their H1B status until their Green Card process is complete, even if the I-140 has not yet been approved.

8. Recapture Time: If an H1B holder has spent time outside the U.S. during their H1B tenure, they may be able to “recapture” that time and extend their H1B status beyond the six-year limit.

9. Priority Dates: The date when a petitioner files an immigrant visa petition, usually the date the labor certification application is submitted or the I-140 petition is filed. Priority dates are used to determine when an immigrant visa becomes available.

10. Visa Bulletin: A monthly publication issued by the Department of State that provides information on visa availability, including the priority dates for each preference category and country of chargeability.

11. Immigration Attorney: A lawyer who specializes in immigration law and provides legal advice and assistance to individuals navigating the immigration process.

12. Country of Chargeability: The country to which an immigrant is attributed for visa allocation purposes. Different countries may have different visa allocation quotas and wait times.

13. Preference Category: The classification of immigrants based on their relationship to a U.S. sponsor (such as family members or employers) and their eligibility for a Green Card. The preference categories are based on the Immigration and Nationality Act (INA) and determine the order in which visas are allocated.

14. USCIS: U.S. Citizenship and Immigration Services, a component of the Department of Homeland Security (DHS) that oversees lawful immigration to the United States.

15. Lottery Selection: The process of randomly choosing applicants from a pool of candidates for a limited number of available slots, such as in the H1B visa lottery.

16. Legal Status: The specific category and authorization granted to an individual by the U.S. government to reside and work in the United States, such as an H1B visa or lawful permanent resident status.

So, there you have it! After six years on an H1B visa, if you don’t have an approved I-140, you may find yourself back in the H1B lottery. But don’t stress! With proper planning, understanding, and early Green Card initiation, you can avoid this situation. For more detailed information on navigating the H1B visa process and other immigration topics, head over to visaverge.com. Happy exploring, and good luck on your immigration journey!

This Article in a Nutshell:

After six years on an H1B visa without an approved I-140 petition, you may need to re-enter the H1B lottery. Extensions beyond six years are possible with an approved I-140, and leaving the US for at least one year could lead to a new H1B visa. Start the Green Card process early to avoid re-entering the lottery. Seek legal guidance and refer to USCIS and Department of State resources for updated information.