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File PERM Labor Certification Late and the Rules for H-1B Extensions

Hi William:

I am approaching the 6 years of H-1B status in United States. Can I ask my employer to file PERM Labor Certification for me now? or is it too late for me? and what are the rules for H-1B extensions beyond 6 years?


The allowable time for H-1B status in U.S. is 6 years. For an alien to be eligible to extend H-1B status beyond 6 years, it is necessary to qualify certain requirements and conditions, as defined in the "American Competitiveness in the Twenty First Century Act (AC21)". The  first requirement is that the H-1B holder must be the beneficiary of an Labor Certification filed 365 days before (known as the 365-day rule), or the Labor Certification and USCIS Form I-140 must be approved already.

The 365-day rule relates to an alien's ability to extend the H-1B status beyond 6 years. Therefore, it is often recommended that the U.S. employer should file the PERM Labor Certification application at least 365 days before the end of the six years of H-1B status, but it does not mean that the PERM Labor Certification cannot be filed within the 6th year of H-1B status.

The outcome of a Labor Certification filing is not connected to the time the beneficiary has remaining in H-1B status. A Labor Certification application decision does not depend upon the immigration status of the alien beneficiary. The U.S. Green Card application is related to a future job offer concept, unlike the ability to obtain H-1B extensions to live and work legally in U.S.

Some aliens with H-1B status often ask whether it is too late for the U.S. employer to file a PERM Labor Certification for them, because they are approaching the 6th year of H-1B status, and the economic downturn have delayed the employer's ability to file the PERM Labor Certification early for these H-1B status holders. Some people may assume that it is difficult to file a PERM Labor Certification, if one is in the 6th year of H-1B status already, but actually Labor Certification can be filed at any time, even in the 6 years of H-1B status in U.S.

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