Philadelphia Immigration Lawyer Blog

As many know, the maximum amount of time an individual may be in H1B status is 6 years, usually divided into an initial stay of 3 years, followed by an extension of another 3 years. (There is an exception where the H1B holder has a labor certification application or employment based immigrant petition that has been pending for more than 365 days but that’s beyond the scope of this entry).

Of course, after the H1B visa holder has been outside the United States for a year, he or she can apply for another H1B visa and potentially remain in that status for period of another 6 years.

There has been some confusion about when that one year period begins to run and when one is eligible to file a new I-129 petition for another H1b stay. Now, the Vermont Service Center has confirmed that an allocation of another 6 years in H-1B status is available only after the Beneficiary has been physically outside the U.S. for the full year.

If one files the I-129 petition before the Beneficiary has been outside the U.S. for that full one year, the petition is going to be denied. In other words, one should not file the I-129 expecting that it probably won’t be approved until they have been outside the U.S. for the one year, thinking that then they are ok. Eligibility for the new period of H1B status must be demonstrated at the time the petition is actually filed—so if you have not been outside the U.S. for the full year, you’re not eligible as of the day you filed and your petition will be denied.

So it’s important to be careful about the timing of the filing.