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H and L Visa “Max-out”

Overview

Individuals who hold H-1B and L-1 nonimmigrant status need to be aware of their “max-out” date – the date by which they will no longer be eligible for that visa status.  These visa classifications have a fixed limit on how long a person may stay in the United States.  H-1B and L-1 visa holders should plan well in advance of their max-out date in order to ensure that they can remain in the United States without interruption.

Nonimmigrant Status Duration, Extension and Max-out

The various categories of nonimmigrant visa classifications have different periods of duration for initial approval and extension of status.  H-1B and L-1 visas are unique in that they have a maximum period of status eligibility.  Other nonimmigrant visa classifications have no maximum periods stay as long as the person does not have the intent to remain in the U.S. permanently – in other words, an individual may continue to renew or extend status as long he or she does not have the intent to immigrate to the U.S. These visas include E-1 and E-2; E-3; H-1B1; O-1; and TN.

H-1B and L-1 Max-out dates

L-1A (Intracompany Manager or Executive) status has a maximum period of stay of seven years.  After seven years of L-1A status, an individual would have to remain outside the United States for a period of at least one year; if the person remained employed with the same qualifying organization during that one-year period in a similar job, he or she would become eligible for another seven years of L-1A status.

L-1B (Intracompany Specialized Knowledge Employee) status has a maximum period of stay of five years.  After five years of L-1B status, an individual would have to remain outside the United States for a period of at least one year; if the person remained employed with the same qualifying organization during that one-year period in a similar job, he or she would become eligible for another five years of L-1B status.

H-1B (Specialty Occupation Employee) status has a maximum period of stay of six years.  However, H-1B status can be extended beyond the six-year maximum as long as certain milestones in the green card process have completed.  Please see below for details on H-1B status extensions beyond six years.

Recapture Time

The max-out limits on H-1B and L-1 status refer to time spent physically in the U.S. in H-1B or L-1 status. Time spent outside of the U.S. does not count against the maximum and can be added and requested as an extension of H-1B or L-1 status.  This is known as “recapture.”

For USCIS to approve an extension petition that includes recapture time, an individual must provide evidence of your having been physically present outside of the U.S.  We advise that individuals maintain a log of exits and entries from and to the U.S., and retain documentation of international travel such as boarding passes; copies of entry and departure stamps in passports; and any other proof of physical presence being abroad. 

Extension of H-1B Status Beyond the Six-year Max-out

Individuals in H-1B status may obtain an extension of status beyond the 6-year max-out period, if:

  1. 365 days or more have passed since the filing of a Form ETA 9089 Application for PERM Labor Certification which is still pending, unexpired, or the basis of a filed I-140 petition, or
  2. 365 days or more have passed since the filing of a Form I-140 immigrant petition which is pending or approved; or
  3. The individual is the beneficiary of an approved I-140 petition filed on their behalf, and is not “current” under the Department of State’s visa bulletin (ineligible to be granted permanent resident status because of backlogs in the per-country limitations).

Please note, there are certain limitations to the above criteria.  We recommend consulting with immigration counsel to confirm eligibility for an H-1B extension beyond six years.

H-1B and L-1 max-out issues can be complex.  Therefore, it is essential that you and your employer speak about the permanent residency process or alternative visa options at least two years before you reach your visa maximum, and that you consult with immigration counsel.  

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