H-1B Extensions Before Max-Out: I-140 Timing and Options

If you’re on H‑1B and your six‑year max out date is coming, the key is simple: you cannot stay in H‑1B status past six years unless you have the right green card steps in place.

Under U.S. law, you can go beyond six years only if:

• You have an approved I‑140 petition that has been approved for at least 180 days (for three‑year extensions), or
• You have a pending PERM labor certification or I‑140 petition that was filed at least 365 days before you hit the six‑year limit (for one‑year extensions).

According to analysis by VisaVerge.com, many workers wait too long to start this process and then face forced trips abroad or gaps in work because the timing does not line up with H‑1B rules.

The entire journey usually starts with PERM labor certification, moves to the I‑140 petition, and then to H‑1B extensions beyond six years.

Overview: Key Rules to Remember

• 365‑day rule: A PERM or I‑140 must be filed and pending at least 365 days before your six‑year H‑1B limit to qualify for one‑year extensions.
• 180‑day rule: An approved I‑140 must have been approved for at least 180 days to qualify for three‑year extensions and provide stronger protections (priority date retention, H‑4 EAD benefits).
• If an I‑140 is revoked for fraud or error, you cannot use it for extensions.
• Timing matters: many employers start PERM in year 4 or early year 5 of H‑1B to hit the 365‑day mark.

Important: Plan early. Missed timing often forces foreign travel or gaps in employment.

Step 1: Employer Starts PERM Labor Certification

The first step for most H‑1B workers is the PERM labor certification, filed by the employer with the U.S. Department of Labor using Form ETA‑9089.

Purpose of PERM:

• Tests the U.S. labor market to confirm there are no ready, willing, and qualified U.S. workers for the job at the required wage.
• Establishes the employer’s need for hiring a foreign worker on a permanent basis.

Why PERM timing matters:

• To qualify for one‑year H‑1B extensions, the PERM or I‑140 must be filed and pending for at least 365 days before the six‑year cap.
• If PERM is started too late, you may not reach the 365‑day threshold in time.
• In practice, employers often start PERM in year 4 or early year 5 to allow enough buffer.

Step 2: Filing the I‑140 Petition After PERM Approval

After PERM approval, the employer files the I‑140 petition (Form I‑140) with USCIS.

This step confirms:

• The job offer is real and permanent.
• The employer can pay the offered wage.
• You meet the education and experience requirements.

When USCIS approves the I‑140:

• Your priority date becomes locked in.
  • For PERM cases, the priority date is the PERM filing date.
  • For Schedule A workers (who skip PERM), it is the I‑140 filing date.
• You can retain the priority date even if you change employers, provided the I‑140 is approved.
• If the I‑140 has been approved for 180 days, you keep priority date retention and can use the approval for certain benefits even if the employer later withdraws it.

For more detail, see the USCIS resources: https://www.uscis.gov/i-140 and https://www.uscis.gov/working-in-the-united-states/permanent-workers.

Step 3: Three‑Year H‑1B Extensions Based on Approved I‑140

The strongest path to stay beyond six years is the three‑year H‑1B extension based on an approved I‑140.

You qualify for a three‑year extension if:

• You have an approved I‑140 petition, and
• The I‑140 has been approved for at least 180 days.

Key points about the 180‑day rule:

• After 180 days, the I‑140 is effectively locked in for H‑1B extension purposes and for priority date retention.
• Even if the employer withdraws the I‑140 after those 180 days (or goes out of business), you can still use that approval to get H‑1B extensions with a new employer.
• If USCIS revokes the I‑140 for fraud or error, you cannot use it for extensions.

The employer requests this three‑year extension using Form <a href="https://www.uscis.gov/i-129">I‑129</a>.

Step 4: One‑Year H‑1B Extensions Based on Pending PERM or I‑140

If you do not yet have an approved I‑140, you may still obtain one‑year H‑1B extensions if timing requirements are met.

You qualify for one‑year extensions when:

• A PERM or I‑140 was filed at least 365 days before your six‑year limit, and
• That PERM or I‑140 remains pending when you file for the extension.

Important details:

• The PERM or I‑140 does not need approval—only filed and pending for 365 days.
• Once the I‑140 is approved and has met the 180‑day mark, you can transition to three‑year extensions.
• If the pending PERM or I‑140 is later denied, you lose the basis for further one‑year extensions.

This route allows you to remain in status while USCIS/DOL process long‑pending cases.

For official guidance on H‑1B extensions based on pending or approved employment‑based proceedings, see USCIS pages on the relevant extension rules: https://www.uscis.gov/i-129.

Step 5: Filing H‑1B Extensions on Time

Proper filing timing is critical to avoid gaps in status.

Practical filing guidance:

• Employers should file H‑1B extensions at least six months before current H‑1B status expires.
• USCIS allows extensions to be filed up to 180 days early.

Why the six‑month window matters:

• Filing early reduces the risk of running out of authorized time before USCIS adjudicates the extension.
• In many cases, timely filed extensions permit continued work authorization (often referenced as up to 240 days in certain circumstances), but those protections do not override the six‑year cap without qualifying PERM/I‑140 timing.

For official H‑1B rules and extension guidance, see: https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations-dodd-frank.

Step 6: Impact on H‑4 Spouses and H‑4 EAD

An I‑140 approved for 180 days benefits family members as well.

• Once the I‑140 has been approved for 180 days, an H‑4 spouse can typically apply for or renew an H‑4 EAD.
• This ability to obtain or retain an H‑4 EAD can continue even if the employer later withdraws the I‑140, provided the I‑140 was not revoked for fraud or error.

Thus, the 180‑day milestone is important for both your H‑1B extensions and your spouse’s employment authorization.

Practical Timeline Example

Think about timing this way if your six‑year H‑1B max out is approaching:

1. Years 1–3 on H‑1B
   • Discuss long‑term green card plans with your employer.
   • If a green card looks likely, plan early.
2. Year 4
   • Ask your employer to start PERM labor certification.
   • Starting in year 4 gives time to reach the 365‑day pending mark if delays occur.
3. Year 5
   • Aim to file PERM no later than the start of year 5 so it can be pending for 365 days before the end of year 6.
   • After PERM approval, file the I‑140 petition promptly.
4. Year 6
   • Ensure either:
     • The PERM or I‑140 has been pending 365 days, so you can file for one‑year extensions, or
     • The I‑140 is approved and you are counting down to 180 days of approval for a three‑year extension.
   • File your H‑1B extension about six months before your max out date.

By planning around the 365‑day and 180‑day rules, many H‑1B workers and employers avoid gaps in status and keep the green card process moving.

Key takeaway: Start PERM early (ideally in year 4), track the 365‑day and 180‑day milestones, and file extensions about six months before your H‑1B expires to maintain status and protect family work authorization.