FAQs

Expiration of Temporary Visas Before Permanent Immigration

The question is often asked about the overall limit on temporary visas such as the H-1 (6 years) and the L-1 (5 or 7 years). The question posed is what happens if my time runs out on my temporary visa before my name is reached on the green card waiting list (assuming that the employer has sponsored you for a green card)?

Generally, if the H-1 has a six-year limit, then at the end of six years, the person must either leave the U.S. or move into another visa category, ASSUMING they are eligible for some other category. Since this is an individual matter, there are no general guidelines whether moving to another category is even an option. It will not be something to even consider until closer to the end of your H or L time. There are however, some exceptions to this six-year limit on H status.

There are no provisions of law that will permit an individual to extend L status for more than the maximum (5 or 7 years). For those individuals in L status it is necessary to contact us very if you are running out of time so that we can determine what, if any, options are available

An H-1B may be extended beyond the 6-year limitation period if a labor certification application, an I-140, or an employment-based adjustment application has been filed and 365 days or more have elapsed since the filing of a labor certification application or an I-140. The H-1B status will be extended in one year increments. To take advantage of this provision, a labor certification application or I-140 may have been filed by your current employer or a prior employer. The extensions may also be given to H-4 family members. The H-1B status may be extended in one year increments until: the labor certification application is denied or, if approved, until the I-140 filed pursuant to the labor certification is denied; the I-140 is denied where no labor certification application was required; or the grant or denial of the application for immigrant visa or adjustment of status.

Another provision of the law enables H-1B nonimmigrants with approved I-140s who are unable to adjust status to U.S. permanent resident because the priority date is not current, to extend H-1B status. The H-1B individual must have an I-140 filed and approved on his/her behalf and be eligible to be granted permanent resident status except for the priority date backlog. The H-1B status may be extended in three-year increments until the person is no longer quota backlogged. However, the person may still be eligible to file for extensions of time in one year increments until a final decision is made on the AOS application as long as the labor certification or I-140 petition has been filed and 365 days or more have elapsed since filing.

The question thus always comes down to what are the options and will I get my green card in time. The options are, as mentioned above, few if any. Unless there is another available visa category to move into or the individual meets the requirements to extend H-1B status beyond the six-year limit, the person must leave the U.S. when their temporary visa time runs out.

Whether a person will get their green card in time is also a question that cannot be answered. There are government processing times over which none of us have any control or influence. The government recently added I-140 petitions to premium processing. Therefore, it is possible to get an expedited adjudication of most I-140 petitions.

For certain individuals who are subject to a quota backlog, there is no way to predict when their case will be reached on the waiting list. So again, we cannot offer any insight into this area and the question cannot be answered. We do our best to keep our clients informed of any changes in the immigration laws that will affect their cases. However, the DOS releases the numbers for the visa bulletin and we never know if the priority dates will move, and if they do move whether they will go forwards or backwards.

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