G . Only those, H1B workers for whom an employer is actively pursuing permanent employment-based immigration path or, in rather limited circumstances, when they are doing so on their own, are given some leeway in this otherwise rather rigid rule. pursuant to AC21 section 106 (b), an H1B worker is eligible for an extension of H1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior. WebAn alien establishing eligibility for an H-1B extension beyond 6 years must be the named beneficiary on the LC unless he or she was substituted for another alien on the LC on or before July 16, 2007. Visa Overstay And Illegal Presence In The U.S. WebExtensions under this provision are for one-year increments, and must be renewed if the applicant remains eligible.14A request for a one-year extension may be combined with a request for an extension until the end of the six-year period by an H1B worker had left the country and then returns to recapture time on H1B status, but this combination This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. Our experienced attorneys will be happy to assist you. However, when youre putting the application together, you should indicate, perhaps in the cover letter, that the H-1B visa extension application is seeking to leverage AC21, and you should provide all necessary evidence to support the use of AC21, such as a pending labor certification application. Provided that the applicant was ineligible to apply for adjustment of status at the time of the approved I-140 petition, they will be granted a three-year extension of H-1B status. First, a high-level overview of the green card process: One-year H-1B extensions may be granted by USCIS beyond the six-year maximum if 365 days have passed since filing the labor certification (also known as PERM) application on the H-1B workers behalf, or 365 days or more have passed since filing the I-140 petition. Applying For A Change Of Status In The U.S. Temple Departments Important to Incoming Students, Reduced Course Load (RCL) Based On A Medical Condition, Returning to Temple After Leave of Absence. Your i140 is approved. This provision allows certain employment-based adjustment of status applicants (EB-1, EB-2, EB-3) who experience delays in the employment-based adjustment of the status process flexibility to accept the new offer. Country caps combined with high demand for green cards has led to incredible wait times. g ia abpl(PWfep a LU]whhY0<0 Individuals who have questions about this may wish to consult an experienced immigration lawyer., Supplemental Guidance Related To Processing Forms I-140, I-129, and I-485 Under AC21 and ACWIA [USCIS, Donald Neufeld (May 30, 2008)]. None come close. AC21 Extension to get EAD for H4. The statute says that the 104(c) extension exception applies to individuals who are eligible for an EB-1, EB-2, or EB-3 visa number "but for application of the per country limitations applicable to immigrants under those paragraphs." Most H-1B workers whose current employer or a prospective employer (if they change jobs) wants to sponsor their green card petition go through applying for an employment-based immigrant visa. < In general , a specialty occupation requires the theoretical and practical application of a body of highly specialized knowledge; and attainment of a bachelor's or higher degree in the specific specialty (or its equivalent) as a minimum for entry into the occupation in the United States . may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon. In these cases, the applicants sometimes leave the United States before the expiration of their H-1B visa to preserve the remainder of their H-1B status while abroad. Henri and his employer should first determine if Henri has any recapture time. Deny the labor certification application; Grant or deny adjustment of status or application for an immigrant number. remember that H4 status is not automatically extended when the primary This rule also increased the efficiency of transferring an H-1B from one job to another without having to count towards the annual visa cap number. WebWhat is AC21 for H1B Extension H-1B visa status is valid for a maximum of six years: maximum three-year at one time, but may be extended multiple times with the total not That reading would limit this benefit only to those experiencing unavailability of a visa number arising from the "per country" limitations, which are separate from the overall numerical restrictions in an employment-based category. A 2008 USCIS memo clarified, however, that both "per country limitations" and "worldwide" unavailability of visa number unavailability can serve as the basis for a 104(c) extension. Click here for details. Can he recapture the time he spent outside the U.S. now, before he has reached the end of his sixth year? Once the H1B petition is approved, Henri can go to the U.S. Consulate to obtain an H1B Visa stamp and return to the U.S. in H1B status to resume his employment. This way, as the client grows and hires more H-1B visa holders, theyll be prepared for timelines that extend beyond six years. See AC21 Section 104(c). Another benefit of AC21 for H1B workers is that in case of "H1B transfer," AC21 106(a)-(b), as amended; INA 214(g)(4); USCIS memo from Michael Aytes (December 27, 2005), Filing requirements for AC21 106(a) benefits. Fax: (212)964-0440, Copyright 2019 My Attorney USA. An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. If you have an immigration issue or unclear about your visa options. What are his options? We and our partners use cookies to Store and/or access information on a device. Henri is in the U.S. working pursuant to H1B status. months of LC approval. H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility. A foreign national in the United States on H-1B nonimmigrant status is limited to a maximum stay of six years. Washington, D.C.: ALIA Publications, 2009. Phone: (212) 202-0342 Immigration Services Throughout the United States, Document Review Skype Consultation (One Hour), At Herman Legal Group, Your Future Matters Most, Copyright 2017 - 2022|Herman Legal Group, LLC. You can apply for 1 year H1B extension. (AC21). May file for an H-1B extension beyond 6 years within 6 months of the requested start date. Even though it may feel premature to talk about whats going to happen six years down the road, its important for the client to understand the different possible scenarios from the beginning, especially if they dont have a large H-1B population. American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit. Under sections 104 and 106 of the American Competitiveness in the 21st Century Act ( AC21), it is possible to obtain H-1B status beyond the six-year limit for the following individuals: An application for extension of stay under the AC21 provisions will, like a regular application for extension of stay, benefit from the "240-day rule". On 07/25/2019, I received an RFE stating that I'm not eligible for extension due to "lengthy adjudication delay exemption". Of course, rules have exceptions and the 6-year limit on H1Bs is no different. In order to obtain the 3-year H1B extension beyond 6 years, the employer need only show that immigrant visa numbers are not available as of the date the petition is filed. Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Under the current statutory interpretation, an applicant doesnt have to be currently on H-1B status or in the U.S. to be eligible for the three-year extension of H-1B status. WebUnder AC21 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an Her first H1B approval notice was dated October 1, 2010 to September 30, 2013. In this section we will discuss the details of how H1B holders can take advantage of AC21. Its popularity is mostly due to its size almost 1.8 million H-1B visas have been issued between 2001 and 2015, and USCIS received 274,237 H-1B registrations for FY 2021 but frequent news coverage has boosted the H-1Bs visibility. Under certain circumstances, However, due to the high demand of employment-based visas and the annual cap limit and per country limits, its not rare that employers applications are still pending when the H-1B status of a foreign worker is about to expire after six years of authorized stay. 2023 Docketwise, Corp. All Rights Reserved. If you just need to know your visa eligibility or have a few short questions. Yes, you may extend your H-1B visa beyond the 6-year limit. In addition to a detailed list of U.S. departure and entry dates, examples of documents that should be submitted in order to document time spent outside the U.S. include: c.Record of Entry/Exits from CBP (the record of Entry/Exits from the CBP is not always accurate and should be supplemented by other documents, if inaccurate). ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). I've already enthusiastically recommended Docketwise to several colleagues., This product has increased my law firms productivity ten fold. Our law firm has extensive experience for more than 15 years in providing immigration services in the field of immigration law. Emily is eligible for a 3-year H1B extension beyond 6 years because her I-140 has been approved and she cannot apply for Adjustment of Status because of Priority Date retrogression. Unlike status granted under 106(a)-(b), which is limited to one year at a time, status under 104(c) may be granted for up to three years at a time. Print. Most H1B workers who endeavor this do so by being sponsored by their current or prospective employers through applying for an employment-based immigrant visa.1 However, due to great demand for employment-based visas and due to the annual caps on the number of such visas that can be issued, many applicants will find that their employer's applications are still pending as their H1B status is set to expire. Such people with pending I-140 petitions in one of the employment-based visa preference categories who may be eligible for a three year extension but for not having an approved I-140 petition may request premium processing of their I-140 petition order that they would be able to apply for the three-year extension instead of a one-year extension.13, Extensions under this provision are for one-year increments, and must be renewed if the applicant remains eligible.14 A request for a one-year extension may be combined with a request for an extension until the end of the six-year period by an H1B worker had left the country and then returns to recapture time on H1B status, but this combination extension may not be for more than three years.15, In order to apply for a one-year extension of H1B status, an applicant needs proof that he or she filed a labor certification application 365 days before applying for the extension, and documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification. Thousands of green card applicants are facing extended wait times for permanent residency, but filing an extension under AC21 is an often essential maneuver to ensure that your clients H-1B visas dont expire while they are waiting. In order to be eligible for a three-year extension of H1B status, the foreign national must meet the followingrequirements: Have an approved I-140 petition for an employment-based immigrant visa in the EB-1 (priority worker), EB-2 (professional with advanced degree or person with exceptional ability), or EB-3 (skilled or professional worker) preference categories, or 4, 5 After the expiration of the six year period on H-1B status, alien workers must live outside the U.S. for at least one year before qualifying to obtain another H-1B visa. ,F++@qM@ZB4\*%gzU U Depending on your situation, you may obtain extensions in Under the AC21 rule, your spouse may be eligible to apply for an H4 EAD if you meet the following conditions: Your H-1B visa has been extended beyond six years under AC21's provisions. is filed on your behalf. Additionally, once Tonys H1B is about to expire again in 3 years, his employer can seek H1B extension beyond 6 years by requesting the remaining 35 days of recapture time in addition to any additional time he spends outside the U.S. Karla is in the U.S. in H1B status. Response: There may be an option to extend your H-1B beyond six years under AC21 if your denied I-140 is appealed. You file your I-485 application for adjustment of status within one year when your priority date became current. :2<1?1B4WB{n[4__YM f%UC 1|raYeJz90 eG=B.W@]jZA8KA7G@. X!7AIh0:]QhwilQ>B`kkp9NSu= 'G#I!QFS;=I*JEh*l$\$4'/m\T$\bZ"G!7BJ }|l 1184(g)(4)), any alien who To view the purposes they believe they have legitimate interest for, or to object to this data processing use the vendor list link below. hb```e``Ib`a```@ fEcdC%&uB"\wbo9m+]SC{X}nx||{2''fW T CG#20u4v40w 5XX:j The H-1B visa is a temporary, employment-based visa that allows employers to petition for foreign professionals to work in specialty occupations. H-4, B-2, etc.). %PDF-1.6 % If the labor certification application is being appealed, the applicant must provide proof that the denied Form 9089 labor certification is under reconsideration by the Department of Labor or the Board of Labor Certification Appeals. My 6 year limit ends on May 27 2022 My employer had applied for PERM. Something went wrong while submitting the form. starts when your employer files I-140 for you. An H-1B visa may offer a path to permanent residency, at which point the visa holder no longer needs an employment based visa and is not tied to a sponsoring employer. Had been eligible to apply for adjustment of status but were then subject to cut-off date retrogression6, Under current statutory interpretation, an applicant need not currently be on H1B status or in the United States to be eligible for the three-year extension of H1B status.7, An applicant will be required to file his or her accepted I-140 petition in one of the first three employment-based visa priority categories order to apply for the three year extension. Once the PERM is approved, a Form 1-140 Petition for Alien Worker can be submitted. You can apply for 1 year H1B extension. If youre just getting started with H-1B visas, or youve done a few in the past and are building up your practice, youll want a forms and case management software that helps your firm scale production and realize efficiencies. The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number. Herman Legal Group has had the privilege to help a number of clients from all around the globe to get an H-1B visa, seek visa extension beyond six years or obtain permanent residence and adjust status, and obtain an employment based green card. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. So it is recommended that H4 With another job role. AC21 stands for American Competitiveness in the 21st Century Act. Since both the one and three-year extensions of H1B status allow a foreign national to remain in the United States on H1B status, the foreign national must continue to meet all of the requirements for H1B status to be approvable for an extension. The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. Partial days spent in the U.S. count against the six years. b.the Labor Certification or I-140 was filed at least 365 days before the end of the sixth year or the requested H1B start date. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. So if an approved labor certification wasn't used in an I-140 petition within 180 days, it would no longer be able to support an H1B post 6th-year extension. Once 365 days from the filing of the labor certification application LCA or I-140 petition have elapsed, they apply for an extension of H-1B visa along with a request to recapture time spent outside of the country while on H-1B status. After such period, you can apply for additional three years, making it a six-year maximum, but in increments of no more than three years at any one time. Since 1990, Congress has limited the number of H-1Bs made available each year. ALIA's FocusSer. Citizenship and Immigration Services, 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an EB immigrant; or, 365 days or more have passed since the filing of an EB immigrant petition (I-140); or. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 petition. Thanks! 3563 0 obj <> endobj Since coming to the U.S., she has spent an additional 100 days outside the U.S. How much time can Karlas employer recapture? 9.AC21 and the six-year limit. Karlas employer can recapture all the time she has not been in the U.S. since the beginning of her H1B validity dates- including the dates from October 1, 2010 to her entry into the U.S. on April 1, 2011, which is approximately 181 days. In order to make a determination as to the H-1B alien beneficiary's eligibility for an extension of H-1B status under the provisions of 104(c) of AC21, USCIS adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of filing of the Form I-129 petition. Under 106 (a) of AC21, H-1B extensions of status beyond the six year limitation shall be granted if the individuals priority date is at least one year before the original six year limit. New York, NY. Click here for more information. Can be submitted 6 months of the sixth year applied for PERM I-140! Pursuant to H1B status AC21 stands for American Competitiveness in the 21st Century Act employer had applied for PERM recommended... Start date immigration services in the U.S. count against the six years approval, employers will have 180 days submit..., Copyright 2019 My Attorney USA use cookies to Store and/or access information on a device work visas, who... Is preparing the H1B petition and seek an extension of stay for 2 years- until the end of sixth! He recapture the time he spent outside the U.S. now, before he has reached the end of sixth! A ground for ineligibility for an immigrant visa number in addition to the per-country limit with demand... The United States on H-1B nonimmigrant status is limited to a maximum stay of six years under if. Immigration issue or unclear about your visa options extension based on the principal. Discuss the details of how H1B holders can take advantage of AC21 UC... H-1B nonimmigrant status is limited to a maximum stay of six years advantage AC21. Ac21 if your denied I-140 is appealed would be a ground for ineligibility an! To the per-country limit 27 2022 My employer had applied for PERM be an to. 21St Century Act deny adjustment of status within one year when your priority date became current access information a! Yes, you may extend your H-1B beyond six years 1|raYeJz90 eG=B.W ]. 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