Impact of PERM or I-140 Denial on H1B Approval Beyond Six Years

Issues related to H-1B visa extensions beyond the six-year limit when a PERM labor certification is denied. Key points include:

1. Validity of Post-Sixth Year Extensions:
   • There is a consensus that an H-1B extension granted beyond the sixth year remains valid even if the PERM that supported the extension is later denied.
   • However, this may complicate visa issuance at consulates, as some officers verify the ongoing status of the PERM.
2. Impact of PERM Denial:
   • A denied PERM does not automatically revoke the approved H-1B extension. However, it eliminates the basis for future extensions beyond the six-year limit unless a new qualifying PERM or I-140 is filed.
   • If a PERM or I-140 is denied before or during the H-1B extension process, the extension will be denied. But if the extension is already approved, the beneficiary can use the approved period.
3. Special Cases and Considerations:
   • If a beneficiary changes employers or seeks concurrent employment, USCIS might require a new approved I-140 or valid labor certification filed at least 365 days prior.
   • For I-140 revocations (e.g., for reasons other than fraud or misrepresentation), the remaining validity period on the H-1B may still be used, but no additional time can be requested.
4. Guidance and Policy Interpretations:
   • USCIS guidance, such as the December 27, 2005 Aytes memo, clarifies that the denial of a PERM or I-140 does not constitute automatic revocation of the H-1B extension.
   • USCIS has indicated that a beneficiary may only be allowed to stay for the maximum six years if no other basis for exceeding the limit applies.

About the Author

Vasanth Vaidyanathan, Esq.

Administrator

Vasanth Vaidyanathan is an immigration attorney with over 20 years of experience focused exclusively on U.S. immigration and nationality law. He holds a LL.M. from California Western School of Law, San Deigo and advises individuals and businesses on employment and family-based immigration matters, including H-1B, PERM, EB categories, and adjustment of status. He has also been a featured speaker at immigration seminars across the U.S. To reach Vasanth visit: https://www.vnathan.com/

Author's website Author's posts