H-1B visas for members of specialty occupations is a very valuable commodity nowadays as this past season’s H-1B lottery proved. But even for lucky beneficiaries of this highly sought after visa status, there comes a time when it ends—– or does it?

H-1B visa holders can stay in the U.S. and work for up to six years, but there are situations where H-1B holders  can extend their status beyond the six year period. One way is for an H-1B to recapture time spent outside of the U.S. on business, pleasure or for personal reasons.  For example, an H-1B on assignment outside the U.S. can, in effect, recapture this time, which can be tagged on to the end of the formal H-1B period. Another way of obtaining additional time is to file and have approved an I-140 immigrant petition.  In circumstances where immigrant visa petitons are approved but a visa is not available to the beneficiary, the H-1B can seek an extension of the H-1B in increments of three year periods.  In instances where an I-140 petition or Application for Labor Cetification had been filed and has been pending for at least 365 days, H-1B visa holders can extend their status in increments of up to 1 year at a time. But what happens to the H-1B who is coming to the end of her status and has neither an approved I-140 or Labor Certification/I-140 pending for 365 days. Formerly, these individuals were out of luck: When their H-1B status expired, so did there official stay in the U.S.  To address this too frequent problem, very recently (on June 16, 2008) USCIS announced a new regulation which would allow H-1B’s to file I-140s (immigrant petitions based on employment) on an expedited basis, called premium processing.  According to the regulation, an H-1B can request premium processing in connection with an I-140 filed within 60 days of the termination of H-1B status. Under premium processing, USCIS is mandated to advise the petitioner within 15 days whether the petition is approved or not.  As previously discussed, once an I-140 is approved, the H-1B beneficiary can then apply for an extension of H-1B status for an additional three year period (if the immigrant visa applied for is not immediately available). Why should the the Immigration Service try to help H-1Bs stay in the U.S.? This is hard to answer, but the trend seems to be that in reaction to the political paralysis that has made immigration reform impossible, there is tangible effort being made to ease the burdens on skilled nonimmigrants. We saw this, for example, with the new regulation allowing beneficiaries of optional practical training to extend this training for up to 17 months [which was discussed in a prior C-G posting.  The fact of the matter is that without some tinkering by USCIS, the pressure on skilled non-immigrants is so great that many of them otherwise would likely leave the U.S. for good or never come here in the first place. We need not express further the patently stupid situation that American employers have been forced to confront as the result of this inanely counterproductive crunch on skilled immigration. ¼/p>