H-1B Exception Overview
The H-1B status is limited to a six-year status. However, there are four exceptions to this limit. It is possible to obtain H-1B status beyond the six-year limit for the following individuals:
- Those who have been on an H-1B for 6 calendar years but during that time, they have been outside the US. Any time outside the US can be “recaptured” at the end of the 6 years, for an exceptional “extension” beyond 6 years. For example, an H-1B visa holder who has been on H-1B status for 6 years but has left the country for two months each summer for six summers can “recapture” a total of 12 months and extend the H-1B for a seventh year. Scholars must complete an H-1B Recapture Evidence Form from our Scholar Forms page and submit evidence such as stamps in the passport when the department submits an H-1B extension request packet, in order to benefit from recapture time.
- An H-1B can be extended if 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an employment-based (EB) immigrant.
- An H-1B can be extended if 365 days or more have passed since the filing of an EB immigrant petition (I-140), such as petitions under the “Outstanding Professor/Researcher category.”
- An H-1B can be extended if the scholar is the beneficiary of an approved EB immigration petition prior to the expiration of the 6th year of H-1B status but is not able to file to adjust status to U.S. permanent residence because there is a waiting list for available immigrant visas. This includes those who cannot apply for adjustment of status solely because of "per-country limits” on immigrant visa availability (citizens of China, India, Mexico or the Philippines).
Length of Exceptional Extensions
In all of the above cases, SISS may file an extension of H-1B status that exceeds 6 calendar years. For scholars who only have “recapture time,” the extension will be for whatever total combined length of time that the scholar was outside the US.
In the case of most H-1B visa holders who are pending immigrants through employment, these extensions are allowed for one year at a time for multiple extensions until either permanent residence is granted or permanent residence is denied.
In the case of those H-1B visa holders who are pending immigrants from countries where there are “per country limits,” the H-1B may be extended for up to three years at a time, for multiple extensions, until either permanent residence is granted or permanent residence is denied. Citizens who are under “per country limits” are those from China, India, Mexico or the Philippines.
H-1B Change of Status or Departure
If an H-1B departs UC Davis prior to the expiration of their H-1B approval notice, changes to another status, either at UC Davis or elsewhere, or gains permanent residence, the H-1B should complete an H-1B Change or Departure Form found in our Scholar Forms page to notify SISS that the H-1B petition should be withdrawn and the H-1B file should be closed. The University continues to have liability for the H-1B if the remaining time is not withdrawn, even if it is UC Davis that sponsored the change of status or adjustment to permanent residence. Therefore, it is important for H-1B scholars to submit a departure form when applicable.
After Permanent Residence is Granted
Departments must inform SISS when permanent residence (PR) is granted under any category. When PR is granted, the scholar should submit the “H-1B Change or Departure Form” (see above) so that SISS can withdraw the H-1B if time remains, removing any campus liability for the H-1B. SISS will also close and archive the employee’s files at SISS.
The department will need to update PPS to show the new status of “Alien Resident,” and update the I-9 used to show employment eligibility.
The beneficiary of the PR will need to update University tax records in Glacier, update the social security card, and update the driver’s license to reflect PR status.