He was forced to leave the U.S. because he had reached his six-year limit and the employer had not filed a Labor Certification in time for him to be eligible for a 1-year H1B extension after 6 years. WebAdditionally, H-1B nonimmigrants reaching the six-year limit of stay and with pending or approved I-140s but waiting for their Priority Date to become current, were allowed to extend their H-1B status in three-year increments until decisions were made on their adjustment of status applications. 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. I am in 7th year of H1B (Company A) with H1 extension valid for almost another 3 years until 2015 based on approved I-140 and pending I-485 over 180 days. In this article, however, we arent discussing H-1B recapture - were discussing full extensions beyond the six years, using AC21. Section 104(c) of AC21 states: (c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING- Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. WebWhat is AC21 ? No. Labor certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. Seventh Year H1 Petitions Under AC21 As our readers are aware from reading our previous Bulletins there are two provisions of the American Competitiveness in the 21st Century Act (AC21) of October 17, 2000, that allow for extensions of H1 status beyond the usual 6-year limit. 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. There is no limit on the number of such extensions an individual may receive. REMEMBER If you would like to change your settings or withdraw consent at any time, the link to do so is in our privacy policy accessible from our home page.. Do I have to use an EAD to use AC21? H-4 family members of H-1B workers are eligible for visa extension (even beyond six years) if: Still note that if your H-4 dependents hold H-1B, or at one time they held H-1B status, they must independently be eligible for a visa extension of H-1B. 17. Washington, D.C.: ALIA Publications, 2009. Is the validity of the 1-year extension of H-1B status beyond six years (AC21) affected if the labor certification expires? vUO?6P2%/RZx/(0"CJ5=m1~?JTG,JGh!Ev6l%f3#fp@D`t| p$2~? An alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien's requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period. No matter whether you are applying for a one-year H-1B extension or a three-year extension of your H-1B status, you will get approval if you maintain the valid status and continue to meet all of the requirements for H-1B status to be approvable for an extension. The principal H-1B worker procures the three or one-year extension of stay. Avvo has 97% of all lawyers in the US. 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. 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. Under 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 application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the alien's behalf. The H1B holder will not be eligible for this 1 year H1B extension after 6 years if he or she fails to file for Adjustment of Status or an immigrant visa within one year of the priority date becoming current. Something went wrong while submitting the form. The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. 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. dates attached, and will become invalid if I-140 is not filed within six If a labor certification application was not needed, then he or she must submit proof that an I-140 petition was filed on his or her behalf 365 days before applying for the one-year extension of H1B status.16, H-4 family members of H1B workers are eligible for extensions of H4 status provided that they continue to remain eligible for H-4 status, and that the principal H1B worker procures the three or one-year extension of stay. y f$;~nfMnV#~~i2ky5)}d:=qQR}H;B3|2v!D}]NyY.q5xo5%!sz9vsDk&pqYV_$`%[;}U)ceNn[X*sX%*|_^_ rW Dependents of H1B nonimmigrants are also eligible for extending their Henri and his employer should first determine if Henri has any recapture time. She first came to the U.S. in H1B status on April 1, 2011. After six years, an H-1B temporary worker must stay outside the U.S. for one full year before s/he can start another H-1B. 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. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). Dependents of H-1B worker qualify for H-4 status if the alien fils a Form I-539 with thefiling feeand all necessary supporting documentation for the dependent. If you are outside the U.S., you need to apply for an immigrant visa within one year. WebH1B status can be extended in one year increments, indefinitely, past the sixth year if: a. the foreign national has a pending or approved Labor Certification or I-140; and b. the Labor And while perm was under process, they applied for H1b extension for one year. For an alien to be eligible to extend H-1B status beyond 6 years, it is necessary to qualify certain requirements and conditions, as defined in the "American Competitiveness in the Twenty First Century Act As with the three-year extension, being in the United States is not a prerequisite to applying for a one-year extension of H1B status. G . ALIA's FocusSer. A request for a one-year extension can be combined with a request for an extension until the end of the six years by an H-1B worker. Because the standard for the extension is determined as of when the I-140 petition was filed, the applicant will remain eligible for the extension of H1B status even if he or she is eligible to apply for an I-551 permanent resident card at the time of applying for an extension of H1B status.8, Notwithstanding one time protection being part of the title of the statute, current practice allows a recipient of the three-year extension of H-1B status to receive subsequent extensions until his or her adjustment of status application has been approved or denied.9. Avvo has 97% of all lawyers in the US. This rule allows certain H1B visa holders with pending adjustment of status applications to certain employment-based visa categories to obtain a one-year extension of stay under H1B status, provided that they meet certainconditions: Must have previously been issued an H1B visa or have otherwise been provided with H1B nonimmigrant status, or Evidence that a Labor Certification is pending with the U.S. Department of Labor (evidence must be currently dated). You can apply for 3 year H1B extension. I like that Docketwise is so easy to maneuver and use. Your labor certification application (or I-140 petition if labor certification was not required) has expired or has been denied when the one-year extension of status is sought. This software streamlined my Immigration practice and enabled me to process more cases in less time. The six-year maximum validity for the H1Bs can cause stress for many nonimmigrants. 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. H-4, B-2, etc.). myattorneyusa.comis owned and operated by The Law Offices of Grinberg & Segal, PLLC(Grinberg & Segal). WebWho is Eligible for H1B Extension Using AC21? Emily, who was born in China (Peoples Republic) is in the U.S. in H1B Status. Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and Nationality Act. 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. Traveling, The J Exchange Visitor Two Year Home Residency Requirement, E-3 Australian Specialty Occupation Employees, Work Permission For Dependents In E-3 Status, Timelines, Premium Processing and Extension/Amendment Petitions, Timelines, Premium Processing, 240-day Rule & H-1B Portability, Work Authorization Regulation For Certain H-4 Dependents, 240-day Rule: Eligibility To Continue Employment While Extension Is Still Pending, Travel Under The H-1b Portability Provisions, Changing Employers While Holding H-1B Status, Estimated Start Times For H1-B Applicants, Statement Of Specialty Occupation From Department Chairperson, Items Needed When Applying for TN Status at US Border, Requirements For Professional Job Series List, TN Time Limitations / Extension of Status, STEM OPT Employment Not Permitted at Temple University, Automatic Visa Revalidation for travel to Mexico/Canada (H-1B, E-3, TN,O-1), H-1B to Permanent Residence: Travel & Employment, Points to Remember When Applying For a US Visa, Requirements and Rights of those Entering the US, Rights and Requirements When Entering the US, Security Clearance / "Administrative Processing", Travel under the H-1B portability provisions, Changing Status from J-1 Scholar to H-1B Worker, Useful Information While You Are In The US, Applying for a Driver's License or State Identification Card, Rights and Protections for Temporary Workers, Temple-Sponsored Nonimmigrant Visa Options, Hiring Foreign Nationals at Temple University, Practical Training for F1 and J-1 Students, B-1 Tourist For Business Status - Medical Activities, The Hiring Process for Temple-Sponsored International Employees, International Student/Scholars And Arrests, City of Philadelphia Safety and Management, Dependent Employment: F-2 And H-4 Employment, U.S. Applicants 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. AC21 104(c) is applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of a per country limitation to which that alien is subject or, alternatively, if the immigrant preference category applicable to that alien is, as a whole, "unavailable". ' It may takes several months to prepare and file a labor certification application, so make All RightsReserved, Introduction to Extensions of Stay for H1B Visa Workers beyond 6-YearLimit, Precondition to both One and Three-YearExtensions, Rules Regarding the Three-Year Extension of H1B Status beyond 6-year limit, One-Time Protection Under Per-CountryCeiling, Rules Regarding the One-Year Extension of H1B Status beyond 6-year limit, Special Provision in Cases of Lengthy Adjudication, Exemption fromLimitation, Rules for Associated H-4 Visa Holders of H1B Workers Applying forExtensions. See AC21 Section 106(a). Detailed documentation that independently corroborates the time spent outside the United States must be presented when filing an I-129 petition that claims recapture time. This way, as the client grows and hires more H-1B visa holders, theyll be prepared for timelines that extend beyond six years. of six years in H status, you are eligible for 7th-year-extension and Yes, you may extend your H-1B visa beyond the 6-year limit. Enacted in 2000, the American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing foreign nationals to change jobs Although the statute does not state that the individual must be the beneficiary of an approved preference petition, the requirement that the petition be approved is implied by the statute's requirement that the individual be "eligible to be granted that status but for application of the per country limitations." You can apply for 3 year H1B extension. 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." 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. If at any time before or after the filing of the extension request one of the above occurs, the H-1B alien beneficiary of the extension request will not be entitled to an The American Competitiveness in the Twenty First Century Act of 2000 (AC21) law allows H1B extensi KNH October 10, 2018, 2:32pm #3. So, you may be wondering whether you can continue to extend your H-1B once your priority date is current. 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. The priority date in an employment-based case is the date that a labor certification application was first filed, or, for those categories exempt from the labor certification requirement, the date on which an employment-based preference petition (I-140) was filed with USCIS. Her H1B is about to expire and she has reached the end of her 6th year. *cBWE c2_#&+hv7VbgcRV9.|reoU$SDTv9 WH]+*qq8"eU{ Eduardo was in the U.S. in H1B status. 10004 WebOne-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 Grinberg & Segal is a NYC immigration law firm that consists of highly experienced immigration lawyers licensed to practice state law in New York and New Jersey and U.S. federal law worldwide. Lets examine these strategies here. USCIS should grant the 3-year extension even if the priority date later becomes current on or before the H1B petition is approved. Since 1990, Congress has limited the number of H-1Bs made available each year. 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. months of LC approval. Again, the provision of theAmerican Competitivenessin the 21st Century Act (AC21) allows an immigrant to continue the extension of H-1B visa in one-year increments according to Section 106(b). The labor certification application (or I-140 petition if labor certification was not required) has neither expired nor been denied when the one-year extension of status is sought11. AC21 extension is possible only in two cases: Your PERM has been pending for more than 365 days. *PH4(C-&0S)QBcLZI6sN4Co(.zPc0p?OX;'0Nl.7^SE|5#)EP(djQ6?~=b>L-rYaq5oIYp$A28$0q@yR=mzy#YtfMF=oo{SM7uo7Sx!F0|\dipSs..]2[. u|N1NER0{,ehtnGymt_,OGdUyDyTm$Mw[-IlU8%Nh/d?4HS8_3y:u@>0K _\|\"MiHfYBqa_Ld6,'9Je1xHr"aJ7+""i} !4r.$9'Ji4~]?vQTA;TiFO^=^Z"&'0a 4DE 4x(m1UTh1:d 9^ 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. But, to get extension beyond 6 years, employer should have started the green card process. Once H1B holders reach that six-year maximum, they must leave the U.S. and remain outside for at least one year before being eligible for a new six years of H1B. I've already enthusiastically recommended Docketwise to several colleagues., This product has increased my law firms productivity ten fold. Those extensions can be granted in increments of up to three years. Tiffany Feder, Law Office of Tiffany E. Feder. You file your I-485 application for adjustment of status within one year when your priority date became current. WebThe only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition. A select list of videos available through U.S. Embassy websites. Transitioning from H-1B to a green card still involves the visa holders employer, and one or more extensions might be needed while the permanent resident application is pending approval. Under 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 application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the alien's behalf. Your i140 is approved. English||Copyright 2007-2023 ImmigrationRoad.com, AC21 - H1B Extension Beyond Six-Year Limitation, American Competitiveness in the 21st Century Act of 2000 (AC21). Can I Have an H-1B Extension After 6 Years? At least 365 days have elapsed since a labor certification application was filed for the alien (or since an I-140 petition of a labor certification application was not required), or Chapter 1: Extensions of Stay in H1BB Status: AC21[PDF version] 104(c) and 106(a). ALIA's Focus on Immigration Practice Under AC21[PDF version]. If you want to learn more about Docketwise, schedule a demo at the link below, or sign up for our Immigration Briefings newsletter for daily and weekly immigration updates! 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 dependents file I-539 concurrently with H1 extension applications, What are his options? Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. There are two basic rules for extending the H1B beyond the six-year durational limit. The H-1B visa is a temporary, employment-based visa that allows employers to petition for foreign professionals to work in specialty occupations. Both Henris options include: H1B status can be extended in three year increments, indefinitely, past the sixth year if the foreign national has an approved I-140 and the foreign national is unable to file for Adjustment of Status or apply for an immigrant visa because an immigrant visa number is unavailable, in other words, the priority date is retrogressed. See AC21 104(c). In case the LCA is being appealed, you will have to prove that the denied LCA (form 9089) is under reconsideration by the Department of Labor or the Board of Labor Certification Appeals. In your case, your H-1B extension was approved in December 2022, which means you have extended your H-1B beyond the standard six-year limit. 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. 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2023-04-21