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H-1B Extensions beyond 6 Years and AC21

Under the current regulations, an H-1B worker is entitled to a full six-year stay in the United States. Once the six year limitation is reached, the alien must reside outside the U.S. for one full continuous year to reset the six-year clock. Alternatively, the alien can extend his/her period of stay in H-1B status beyond six years by (1) recapturing unused H-1B validity period and/or (2) filing an extension pursuant to the AC21 Act (American Competitiveness in the Twenty-First Century Act). This article will discuss the impact of AC21 on H-1B status beyond six years.

AC21 provides two scenarios in which extension beyond six years are permissible:

  1. 365 days or more have passed since the filing of Labor Certification (Form ETA 9089) or Form I-140 Immigrant Petition for Alien Worker.
  2. An alien with an approved I-140 petition who is unable to adjust status due to visa numbers being unavailable as a result of backlogging.

In the first scenario, if Labor Certification or I-140 petition has been pending adjudication for at least 365 days prior to the requested start date of the H-1B extension petition, the H-1B worker is eligible for extensions in one-year increments, provided all other H-1B requirements are met (i.e. maintaining employer-employee relationship with the petitioning employer). Moreover, a petitioner (U.S. employer) may make a single, combined extension for one year plus any remaining time left in the initial six-year period. In order to be eligible for the one-year extension in this scenario, the Labor Certification or I-140 petition must be pending adjudication for at least 365 days prior to the requested start date. The H-1B extension petition based on the first scenario can be filed prior to the passage of such period; however, USCIS may issue a Request for Evidence (RFE) asking for evidence that at least 365 days have passed since the I-40/Labor Certification has been filed before approving the H-1B extension.

There is no limitation as to the number of extensions one may request. As long as either Labor Certification or I-140 petition has been pending adjudicationfor at least 365 days as of the start date requested in the H-1B extension petition and all other H-1B requirements are met, Section 106(b) of AC21 provides that extensions in one-year increments shall be granted “until a final decision is made on the H-1B nonimmigrant’s lawful permanent residence.”

Example: Mr. Smith has been in H-1B status for five years and his employer filed Labor Certification for him at the end of Year 5. The Labor Certification has been audited and will be pending for 365 days by January 10th of the Year 7. Mr. Smith will have been in H-1B status for 6 years by December 25th of Year 6. However, since Mr. Smith spent 18 days outside the U.S. during his years in H-1B status, he is eligible to recapture 18 days remaining on H-1B, which extends his authorized stay in H-1B status to January 12th of Year 7. Mr. Smith’s employer would like to file an H-1B extension with a start date of December 26th of Year 6. By January 12th of Year 7 (Mr. Smith’s H-1B expiration date of December 25th of Year 6 + recapturing 18 days spent outside the U.S. in past six years), the Labor Certification would be pending for 365 days. Therefore, Mr. Smith is eligible for a combined H-1B extension of one year plus 18 days spent outside the U.S., or January 13th of Year 8.

In the second scenario, if an H-1B worker with an approved I-140 petition is rendered ineligible to file an I-485 Adjustment of Status by backlogging of the per-country limit visa numbers, then s/he is eligible for a three-year extension of H-1B status. Despite the “one-time protection” language in Section 104(c) of AC21, USCIS has clarified that a qualifying H-1B worker may be granted more than one extension under Section 104(c) of AC21. Unlike the first scenario, the H-1B worker does not need to wait for the passage of 365 days before becoming eligible for extension under Section 104(c) of AC21.

Example: Mr. Kumar is an Indian national and has an approved I-140 petition. He will reach the six year limitation in one month. Due to immigration visa number retrogression, Mr. Kumar is currently ineligible to file I-485. Since Mr. Kumar has an approved I-140 petition and cannot file I-485 due to immigration visa backlog, he is eligible for a three-year extension of H-1B status under Section 104(c) of AC21.

Furthermore, the law does not require that Labor Certification or I-140 petition must be from the same employer requesting the H-1B extension under the scenarios discussed above. In other words, if Company A filed I-140 petition for its H-1B worker and a year later that individual leaves Company A and works for Company B, s/he can extend H-1B status beyond six years with Company B.

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