H-1B Extension of Stay

Calculate H-1B time used (minus days spent outside US for recapture). Within 6 years → standard extension. Beyond 6 years → requires AC21 §106(a) basis (approved I-140 or PERM filed 365+ days ago). Approved I-140 with backlogged priority date → 3-year extension. PERM/I-140 pending ≥ 365 days → 1-year extension.

1-2 days

Carefully calculate recaptured time — each day outside the US (trips over 24 hours) can be recaptured.

If position, wage, or worksite has changed, a new LCA must be filed. Even if unchanged, a new LCA is needed if the prior one has expired. Note prevailing wage may change year to year.

5-7 business days

Notify attorney at least 6 months before employee's I-797 expiry to start extension. Confirm any position changes (title, salary, worksite). Update Support Letter if changes occurred.

Provide latest tax returns or audited financials to prove ability to pay (especially important for smaller companies). Provide current employee roster. If salary adjusted, confirm ≥ prevailing wage.

Remind employer at least 6 months before I-797 expiry to initiate extension. Provide updated passport (at least 6 months validity), latest I-94, updated resume.

Review all personal information in I-129 form. Confirm job description accurately reflects actual duties. If position has changed, ensure new description is truthful.

Complete I-129 selecting "Extension of Stay." Attach current I-797, LCA, Support Letter (updated if position changed). For beyond-6-year: attach I-140 Approval Notice or PERM receipt + filing date evidence.

Recommend filing at least 6 months before I-797 expiry. If filed before expiry but still pending at expiration, beneficiary has 240-day automatic extension to continue working (8 CFR 274a.12(b)(20)). Premium Processing strongly recommended if budget allows.

240-day rule only applies to extensions filed BEFORE I-797 expiry. Filing after expiration does NOT qualify.

Sign I-129 extension form, updated Support Letter, G-28. Note: same-employer extension does not require additional ACWIA or Fraud Prevention fees — only the I-129 base fee.

If petition is still pending at I-797 expiry, employee may continue working for up to 240 days. Keep I-129 receipt in I-9 file as proof of work authorization. Consult attorney if still pending after 240 days.

Avoid international travel while extension is pending if possible. If must travel: ensure visa stamp is still valid + carry I-129 receipt + I-797. If visa stamp has expired, must obtain new stamp at consulate before returning.

Traveling while extension is pending carries risk. If visa stamp has expired, you may not get a new stamp in time. Recommend waiting for approval before traveling.

Upon receiving new I-797, verify validity dates. For beyond-6-year extensions, validity may be 1 or 3 years (depending on I-140/PERM status). If travel needed, schedule visa stamping appointment.

Common extension RFEs: specialty occupation argument (especially if duties changed), employer ability to pay, beneficiary continued qualification. After approval, verify new I-797 validity dates. Assist with visa stamping if travel planned.