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First, the permanent residence case doesn’t necessarily need to be completely done for the foreign national to be able to remain in the U.S. and continue employment without an underlying nonimmigrant visa. While the labor certification (if applicable) and the I-140 Immigrant Visa Petition do not themselves convey legal status, the filing of the I-485 Application to Adjust Status to Permanent Residence does convey a form of protection for remaining in the US as long as it is filed while the foreign national was still maintaining status.

The Adjustment of Status application can be (and typically is) filed along with applications for an Employment Authorization Document or “EAD” and (usually) for an Advance Parole document for travel authorization. Both of these are normally issued in the form of a “combo card” reflecting both work and travel authorization.

However, these work and travel authorizations may take some time to come through after filing. Once these are approved the foreign national can remain here, work, and travel just as they would under a non-immigrant H1B or L-1 visa even if these visas are no longer valid.

If the H-1B or L-1 remains valid, they don’t need an EAD/Parole to be able to work or travel abroad without abandoning the adjustment – something that isn’t true of other non-immigrant visas such as Es and Os. Therefore, if the foreign national can get as far as filing the final stage of the process – the I-485 – he or she can remain in the U.S. and get authorization to continue work.

However, in many cases the foreign national will not yet have reached the I-485 stage of the case – either because earlier stage(s) have not yet been completed or (more often) because an immigrant visa is not yet immediately available. There are several possible ways an individual can usually stay here with a labor certification (or even an I-140 Immigrant Visa Petition) pending beyond the maximum time allowed by their non-immigrant visa.

First, time spent abroad may be “recaptured” – we can ask U.S. Citizenship and Immigration Services for the time back, added to the end of the initial six calendar years of H-1B time. An individual in L-1B status, which allows for five years of stay in the US, may be eligible to change status to H-1B, which allows six years of authorized stay thus gaining an additional year (please consult the FAQs on H-1B status for eligibility requirements). An individual in H-1B status can extend that status beyond the allowable six years of authorized stay in two different situations:

  • If the labor certification was filed at least 365 days in advance of the end of the sixth year (we count backward from the end of the sixth year including any recapture time, not forward to the end of the fifth year) AND either the PERM labor certification or an I-140 Immigrant visa Petition remain pending; or
  • Both the PERM case and the I-140 have been approved and the priority date is not yet current, meaning that an immigrant visa is not yet available.

If the reason why the foreign national has not yet reached the Adjustment of Status phase concerns only delays in the processing of the labor certification and/or the Immigrant Visa Petition, these extensions are only for one year at a time – i.e.: a seventh year, and then an eighth year, etc – but such extensions can be obtained indefinitely as long as the labor certification was filed in time and the I-485 Application to Adjust Status to Permanent Residence cannot yet be filed. It is therefore important that the labor certification be filed sufficiently early in the period of non-immigrant stay, not only to get the process started but also to ensure eligibility for this first type of post-sixth-year extension.

If the reason the H-1B foreign national has not yet reached the Adjustment of Status phase of the case is the unavailability of an immigrant visa number rather than delay in processing the earlier stages, it is likewise possible to extend the H-1B beyond the end of the sixth year. However, here a full three additional years of H-1B status may be requested rather than simply one year at a time. Finally, if for some reason none of the above possibilities apply, we can look into whether some other non-immigrant visa status might be appropriate. In many cases, for instance, the O-1 non-immigrant visa for individuals of extraordinary ability may be attainable.