Many H-1B beneficiaries are understandably confused and frustrated when their H-1B petition is approved for just one year, especially when they have three or more years left in H-1B status, or when they have an approved I-140 petition that allows them to extend the H-1B status beyond the sixth year.
Why is this?
There are multiple factors that can affect the duration of the H-1B validity.
- The first issue is how many years the H-1B beneficiary has left in H-1B status. Generally speaking, a person may hold H-1B status for up to six years (time spent in L-1 status is counted against the six year H-1B limit). The H-1B status may be extended beyond the sixth year for up to a three year increment if the H-1B beneficiary has an approved I-140 petition. The H-1B status may be extended beyond the sixth year for one year if they had a labor certification application (PERM) or I-140 petition that was filed at least 365 days before the end of the sixth year. If an H-1B beneficiary does not have a full three years left, and does not qualify for a post-sixth year extension as outlined above, the H-1B validity will be limited by how much time they have left.
- However, the amount of time left in H-1B status or the ability to extend beyond the sixth year is not the only factor that affects the duration of the H-1B validity period. Another consideration is the duration of the project the H-1B employee will work on. This happens frequently with H-1Bs in the consulting industry. The H-1B employer must document that there is H-1B work available for the beneficiary to do. In the consulting context, the employer usually submits a copy of the contract, work order, and/or end client letter. If the work order and/or end client letter indicate that the project will continue for one year or less, the H-1B petition will likely be approved for one year. This is true even if the H-1B worker has three years left in H-1B status, or has an approved I-140 petition and is therefore eligible for a full three years. This is also true even if the work order or end client letter says that there is a possibility of the project being extended. Even with that language, USCIS often will approve the H-1B for only one year.
I personally have never been in H-1B status, but I have worked with enough thousands of H-1B employees and their employers to know well that having only a one year petition validity is very, very frustrating and inconvenient. It affects driver’s license renewals, work authorization, the duration of an H-1B visa for returning to the US after international travel, it is more expensive to have to renew yearly, etc. However, USCIS will look at both issues – the amount of time the beneficiary is eligible for, and the duration of the project they will work on. Both factors are considered in determining the duration of the H-1B validity period, and unfortunately there is not much we as attorneys, employers, and employees can do to change that. The best way to address this challenge is to try to make sure that the work orders/end client letters state as long a project duration as is possible (and truthful), and to file extensions early to avoid delays with driver’s license renewals, etc.
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