H-1B status normally has a six-year limit. If your green card case is stuck because your employer is one of the eight suspended from PERM on October 8, 2026, that limit matters. (SHRM) Two rules in 8 CFR 214.2 let H-1B workers stay past six years. (8 CFR 214.2)
- 365-day rule: you may be eligible for one-year extensions if your PERM or I-140 was filed at least 365 days ago
- A frozen PERM still counts from the day it was filed, as long as it is not denied or closed
- Approved I-140 rule: you may be eligible for up to three-year extensions if the per-country limit holds your visa back
- Never filed: your employer cannot start the 365-day clock through PERM while the suspension lasts
- Days cannot be added up across different filings
Rule 1: the 365-day extension
"An alien who is in H-1B status or has previously held H-1B status is eligible for H-1B status beyond the 6-year limitation under section 214(g)(4) of the Act, if at least 365 days have elapsed since: (i) The filing of a labor certification with the Department of Labor on the alien's behalf, if such certification is required for the alien to obtain status under section 203(b) of the Act; or (ii) The filing of an immigrant visa petition with USCIS on the alien's behalf to accord classification under section 203(b) of the Act." 8 CFR 214.2(h)(13)(iii)(D)(1)
What it means for a frozen PERM:
- The clock runs from the filing of the labor certification. A suspension pauses processing; it does not change the filing date.
- Extensions are granted "in up to 1-year increments" until the approved labor certification expires, or there is a final decision to deny, revoke or close the PERM, the I-140 or the green card application. A denial is not final while an appeal is available or pending.
- An H-1B employer still has to file the extension, and USCIS has to approve it.
- Days from different filings cannot be added together to reach 365, and only the principal beneficiary of the filing can use this rule.
- The H-1B extension does not have to be filed by the employer that filed your PERM or I-140, so a new employer can use it too.
Rule 2: the approved I-140 extension
"An alien who currently maintains or previously held H-1B status, who is the beneficiary of an approved immigrant visa petition for classification under section 203(b)(1), (2), or (3) of the Act, and who is eligible to be granted that immigrant status but for application of the per country limitation, is eligible for H-1B status beyond the 6-year limitation under section 214(g)(4) of the Act." 8 CFR 214.2(h)(13)(iii)(E)
- USCIS may grant this "in increments of up to 3 years" for as long as you stay eligible.
- The employer filing the H-1B must show the visa is unavailable "as of the date the H-1B petition is filed with USCIS."
- The H-1B petition does not have to come from the employer that filed your I-140.
This mostly helps people born in countries with long waits, such as India and China. See our guide on priority dates and retrogression. (8 CFR 214.2(h)(13)(iii)(E))
Which rule fits you
| Your situation | Possible extension past six years |
|---|---|
| PERM filed 365+ days ago, now frozen | One year at a time (Rule 1) |
| PERM filed less than 365 days ago | Not yet. The clock keeps running from the filing date |
| I-140 approved, visa held back by per-country limit | Up to three years at a time (Rule 2) |
| No PERM or I-140 filed | Neither rule applies yet, and your employer cannot start PERM during the suspension |
If neither rule works for you
- A new employer that is not suspended can start PERM, which starts a new 365-day clock.
- A self-petition under EB-1A or EB-2 NIW is an immigrant visa petition you can file yourself. If it is filed at least 365 days before the extension would start and is not denied, it can also support a one-year extension. See green card routes without PERM.
- O-1 has no six-year limit. Compare it in O-1 vs H-1B.
- Your H-1B start date and total days used
- The date your PERM was filed, if it was
- Whether your I-140 is filed, pending or approved, and its priority date
- The current Visa Bulletin date for your category and country
This is general information, not legal advice. H-1B timing is unforgiving, so confirm your dates with an immigration attorney.
Sources
- 8 CFR 214.2, paragraph (h)(13)(iii)(D) and (E)
- 20 CFR 656.31, Department of Labor rules on suspension
- SHRM, "PERM Suspensions Latest Blow to Immigration Programs," October 8, 2026
Frequently asked questions
Does a pending PERM count toward the one-year H-1B extension?
It can. 8 CFR 214.2(h)(13)(iii)(D) counts 365 days from the filing of the labor certification. A suspension does not change when it was filed.
Can I get a three-year H-1B extension?
Only with an approved I-140 in EB-1, EB-2 or EB-3 where a visa is not available because of the per-country limit, under 8 CFR 214.2(h)(13)(iii)(E).
What if my employer never filed a PERM for me?
Then the 365-day rule cannot start from a PERM, and reports say the suspension stops your employer from filing one. A filing by a different employer, or a self-petition such as EB-1A or NIW, can start a new clock, but it only helps once it has been filed for at least 365 days and is not denied.
Can a different employer file the extension?
Yes. For both extensions, the regulation says the H-1B petitioner does not have to be the employer that filed the labor certification or I-140.
Green Card Guide AI is not a law firm and this article is not legal advice. It describes evidence-building strategy in general terms; your attorney determines what belongs in your petition and how it's argued.
