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Bloggings on PERM Labor Certification

by Joel Stewart

Editor's note: Here are the latest entries from Joel Stewart's blog.

December 08, 2008

How to Extend an H-1B Past the 6th Year with PERM

This weekend I met with a client who is in her sixth year of H-1B status. This should be her last year, since there is a six-year limit for H-1B workers. Her fiancee is a permanent resident alien (green card holder) who wishes to apply for citizenship. If he becomes a US citizen, the lady can immediately apply for permanent residency and will no longer need an H-1B visa to live and work in the U.S.

Unfortunately, at some time in the past, the fiancee had some criminal problems which may prevent him from obtaining citizenship. If the lady marries the fiancee while he is still a permanent resident alien,she must wait on the visa quota until a green card is available. The current backlog for this category (spouse of green card holder) is about 4.5 years. During this time, the client will be without status, since her H-1B will expire and cannot be extended. Or can it....?

One  well-known situation which permits extension of an H-1B beyond the sixth years occurs when a PERM case is filed before the beginning of the sixth year. With this condition satisfied, an H-1B visa holder can extend H-1B status indefinitely, while the application for PERM is pending.

But what if the H-1B holder is already working in the sixth and last year in H-1B status and a PERM case has not yet been filed? This is the situation described by my client. Is there anything that can be done to remain in the U.S. legally for the next 4-5 years?

Under a little known interpretation of the law, an H-1B visa holder who is already in the sixth year can change status (leave H-1B status), remain in the US in some other status, and then return to H-1B status after a PERM case has been filed and pending for a year. After returning to  H-1B status, the status will be available indefinitely. The difference between the two interpretations is that for the first, the client must have filed a PERM case before the beginning of the sixth year, and for the second interpretation, the client must have filed a PERM case by momving out of H-1B status, and then back to H-1B status, after the PERM case has been pending for one year.

Obviously, the H-1B holder has to be generally eligible for to change status, which means that he or she has to have been legal in the United States without previous violations of status, and there has to be a visa status available. Remember that visa status categories are listed like the letters of an alphabet soup starting with the letter "A". It follows that the client must see which visa may be a viable option.

Commonly used visa status categoris may be any of the following:  B-1 or B-2 (temporary visitors),  E-1 and E-2 (owners or workers with trade or investor visas), F-1 (students), H-3 (trainees), J-1 (international exchange visitors),  L visas and more. Of course, not all of these categories will be available to all aliens, and even when available, they may not necessarily authorize employment.

Getting back to the client who spoke with me, a PERM case would help her to extend her status in the US, if she follows the proper procedure. 

First, she needs to get married to her fiancee, so he can file an I-130 immigrant visa petition. This will enable the client to get in line to receive a family-based visa (second preference) in the future.

Second, the lady needs to get a PERM application filed. Her current H-1B Employer could do that, or, if not the current employer, a different employer. Since the PERM application will not provide immediate work authorization, the client would not be eligible to work for the new employer immediately.

Third,  she would exit from H-1B status (which in her case is already beyond the beginning of the sixth year) and she has to remain in any another status for which she is eligible to obtain, until the PERM case has been filed and pending for one year.

Fourth, after the PERM case has been filed for one full year, she can return to H-1B status and remain there indefinitely, provided that she has still had some time remaining from the sixth year.

Note that prior to filing a PERM application, there is a recruitment period that takes at least 61 days.

This plan has provided a solution, permitting the lady to remain in the US and live in harmony with her new husband, until her application for residency based on marriage to him can be approved.

And what if the marriage goes sour? Well, there will be a PERM case pending to work for a U.S. Employer. Either way, she can't lose!