Dear Atty. Lou,
We need your help. I am currently in the United States on an H1-B visa, with my husband on H-4. We have been approved for an extension for another 3 years, after the initial 3 years passed.
We would like to know if there are any other options for our case after the current 3 years expires or even within the 3-year period, aside from going back to the Philippines or extending for another year. Thank you.
Joy
Dear Joy,
Generally, the professional working visa known as the “H1B” may be held only for a maximum of six years. In certain cases after your sixth year, there may be limited options, which you may avail of aside from going back to the Philippines.
The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) permits an H1B visa holder to extend the status beyond the sixth year if certain conditions are met. An H1B worker may be eligible for extension if a qualifying labor certification application or an I-140 petition has been pending for at least 365 days prior to the H1Bs requested start date on the petition seeking the extension.
You may want to request your current employer to start processing your petition for immigrant visa. Before your sixth year expires, you may only extend in increments of one year if the above conditions are met. You did not mention what type of occupation your employer petitioned you for. There are certain positions that do not need labor certifications and are pre-certified by the Department of Labor as shortage occupations. These pre-certified occupations do not have to go through a labor certification process. If your case is pre-certified, you may want your employer to directly file for the petition for immigrant worker. Otherwise, you may want to start with an application for labor certification.
The other option you may wish to consider is filing for a change of status. There are different types of nonimmigrant visas you may apply for depending on whether you fulfill the eligibility requirements and the circumstances of your case.
The purpose of a change of status is to allow non-immigrants in meritorious situations to avoid the delay and expense of departing from the United States and returning, in order to engage in activities other than those permitted in his or her original or current nonimmigrant visa category.
The United States Citizenship and Immigration Services or the U.S.C.I.S allows changing nonimmigrant status to new classification only upon approval of a petition. One of the major requirement is effecting a change of status is that the foreign national must have maintained lawful nonimmigrant status. Timing is critical in changing status from H1B to another nonimmigrant visa. It must be filed during the time that your H1B is still valid.
I hope this information is helpful.
Atty. Lou
(Lourdes Santos Tancinco Esq .is a partner at the Tancinco Law Offices, a Professional Law Corp. Her office is located at One Hallidie Plaza, Suite 818, San Francisco CA 94102 and may be reached at 415 397 0808 or 1-888-930-0808, email at law@tancinco.com. The content provided in this column is solely for informational purposes only and do not create a lawyer-client relationship. It should not be relied as legal advice. This column does not disclose any confidential or classified information acquired in her capacity as legal counsel. Consult with an attorney before deciding on a course of action. You may submit questions to law@tancinco.com
