Question: I am currently working under a 3-yr TN visa until 2011. In the past, I also used an H-1B visa for positions not qualified under the TN visa classification. I have used a total of 4.5 years under my H-1B.

If my current employer starts the PERM process for me, and at some point I have to switch back to H-1B status due to the fact that TN is not dual-intent, does it matter if it has been many years (definitely more than 6 years) since I was first issued my H-1B visa? I was able to use the TN visa for a number of years and did not use the H-1B visa continuously since it was first issued.

Given my situation, would I have already violated the 6-year limit under the H-1B? If there is some limit, when must my employer start the PERM process for me before they can no longer sponsor me as a result of the 6 year limit on H-1B visas?

Reply: The H-1B visa is available for 3 years and can be extended for an additional 3 year period for a total of 6 years of H-1B time. Once an individual reaches the 6 year limit, he or she generally may not obtain another H-1B until the individual has resided outside the U.S. for 1 year. After residing outside the U.S. for the 1 year period, the person can obtain another 6 years of H-1B time.

Only time spent in the U.S. working under H-1B status counts towards the maximum 6 year period of stay. Except for the L-1, time spent in the U.S. under another nonimmigrant category does not count against the 6 year H-1B limit. For example, if a person first worked in the U.S. under an H-1B for 4 years, and then changed to TN visa status for 3 years, the individual would still have 2 years of H-1B time available.

However, if an individual has spent more than 6 years in the U.S. under another nonimmigrant category since that person was last counted under the H-1B cap, a petition filed for a second H-1B may be subject to the H-1B annual numerical limits (i.e. the H-1B cap). This individual could not utilize the exemption to the H-1B cap available for those who were counted toward an H-1B cap within the past six years and who have not left the U.S. for more than one year.

In certain situations an individual who has started the process for a green card can extend his or her H-1B time past the 6 year limit. If a person has an approved I-140 immigrant petition and cannot complete the green card application due to the immigrant visa number backlog, he or she can obtain an extension of H-1B status in 3 year increments until the green card is approved. An individual can obtain an extension of H-1B status in 1 year increments if his or her PERM or I-140 application has been pending for a 1 year or more.