3584 0 obj <>/Filter/FlateDecode/ID[]/Index[3563 63 3628 1]/Info 3562 0 R/Length 106/Prev 501886/Root 3564 0 R/Size 3629/Type/XRef/W[1 2 1]>>stream See AC21 Section 104(c). 8 CFR 214.2(h)(13)(iii)(D)(5): Advance Filing. Continue with Recommended Cookies. 0 ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). Do I have to use an EAD to use AC21? Any petitioner seeking an H-1B extension on behalf of an H-1B alien beneficiary pursuant to AC21 104(c) must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations or, alternatively, because the immigrant preference classification applicable to the alien is "unavailable". Typically, the initial duration of an H-1B visa is three years, and it can be extended for a maximum of six years. They do not have to file separate petitions, so long as the total period requested does not exceed three years. He also exhausted all of his recapture time. As a general principle, days spent outside of the United States during the validity period of an H-1B petition will not be counted toward the 6-year maximum period of stay in the United States in H-1B status. Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and Nationality Act. Continue the current course and file the H1B extension requesting a 1 year extension with a starting validity date of at least 365 days after the Labor Certification was filed. Eligibility For Change Of Status Applying In The U.S. 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. USCIS can approve H-1B petitions for an initial period of up to three years and can grant extensions for up to an additional three years. 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. This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. The employer can immediately prepare and file the I-140. Country caps combined with high demand for green cards has led to incredible wait times. I have tried other Visa services, but VisaPro is the best by far. 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. 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). They were very helpful in all phases of the H-1B visa process and they got it right the first time. Using Docketwise, has caused me to give up paper questionnaires and keeps me from inputting information directly into forms., I am extremely pleased with Docketwise. See AC21 104(c). The content of myattorneyusa.comis copyrighted. < 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 . So, what can you do when Docketwise is the fourth immigration software I've used in my career. With our business immigration-specific features, we help you stay up to date on all your cases, communicate easily with your clients, and otherwise build and manage your firm. It is wise to consult with an experienced immigration lawyer and assess your particular situation in this situation. Emily, who was born in China (Peoples Republic) is in the U.S. in H1B Status. After pending for 5 months, the application is chosen for Audit by the DOL, to which the employer responds. Under American Competitiveness in the Twenty First Century Act of 2000AC21and the 21st Century Department of Justice Appropriations Authorization Act of 2001DOJ Act, if an H-1B employer can file one-year increments of H-1B extension after sixth year on H-1B and seek more than one extension. WebThe law also permits one-year extensions of H-1B status beyond the 6th year, even without an approved I-140 immigrant visa petition. dates attached, and will become invalid if I-140 is not filed within six Our experienced attorneys will be happy to assist you. If your case does not fall in either of above cases, you will only get extension for the balance period remaining in your total 6 year H1B quota. 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. 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. Web(1) 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: 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. y f$;~nfMnV#~~i2ky5)}d:=qQR}H;B3|2v!D}]NyY.q5xo5%!sz9vsDk&pqYV_$`%[;}U)ceNn[X*sX%*|_^_ rW 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. AC21 Extension to get EAD for H4. WebThe only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition. 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. WebUSCIS Clarifies Position on AC21 H-1B Extensions. Whether an H1B worker is eligible for an extension of H1B status is unclear if the H1B worker's labor certification application or I-140 petition is withdrawn by an employer on account of the H1B worker switching jobs pursuant to H1B status.12 Although current practice suggests that an H1B worker in this situation might still be eligible for an extension, he or she should consult with an immigration practitioner to assess the likelihood of approval and the full breadth of availableoptions. Webalien to request an H-1B extension beyond the 6-year limit? A foreign national in the United States on H-1B nonimmigrant status is limited to a maximum stay of six years. 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. So, thats 2 criteria to get EAD. Another benefit of AC21 for H1B workers is that in case of "H1B transfer," Since 1990, Congress has limited the number of H-1Bs made available each year. vUO?6P2%/RZx/(0"CJ5=m1~?JTG,JGh!Ev6l%f3#fp@D`t| p$2~? You may extend your H1B status annually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the six-year limit. 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. Knowledgeable, fast, courteous, efficient are all words that describe the services I received from VisaPro. I've already enthusiastically recommended Docketwise to several colleagues., This product has increased my law firms productivity ten fold. 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 6 months before the end of Henris sixth year, on 04/01/2015, the employer files the Labor Certification. 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. b8jP*(Vo&IdSD With another job role. You can apply for 1 year H1B extension. USCIS should grant the 3-year extension even if the priority date later becomes current on or before the H1B petition is approved. 1 I learned about this news because many individuals on Quora, a Be otherwise eligible for adjustment of status from H1B worker to employment-based visa in one of the first three preference categories but for the per-country or worldwide cap on employment-based immigrant visas, or, So it is recommended that H4 Your PERM petition (labor certification application) or I-140 petition have been filed at least 365 days before you reached your six-year limit of H-1B time, and. AC21 104(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING.--, Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. ' H-1B aliens who are already eligible for the AC21 extension benefit, but who have some time left towards their regular 6-year maximum, can use a single petition to extend their stay for the remainder of their 6 year eligibility, as well as for up to a year of AC21 eligibility beyond 6 years. Upon further research I believe i should be eligible for h1b WebOn December 30, 2017, McClatchy DC Bureau reported that the Trump Administration was considering a draft memorandum that would reinterpret the language of AC21 [see category] to stop granting extensions of stay beyond the 6-year limit for H1B visa-holders with pending immigrant visa petitions. He is in H1B status and his status expires on 5/31/2017 (the end of his 6th year). With regard to filed petitions, the only requirement is that 365 days have elapsed since a labor certification application, or I-140 petition if a labor certification application was not required, was filed. If, on the date of filing of the H-1B petition, the Visa Bulletin shows that the alien was subject to a per country or worldwide visa limitation in accordance with the alien's immigrant visa "priority date", then the H-1B extension request under the provisions of 104(c) of AC21 may be granted. Under certain circumstances, But, to get extension beyond 6 years, employer should have started the green card process. See AC21 Section 106(a). Copyright 2023, Temple University. I suggest that your Green Card process is initiated at least in the 4th year of As you begin the process of filing extensions under AC21, here are two action items that can help you better support your H-1B clients: Explain the entire H-1B process to your clients, including how these extensions work. AC21 extension is possible only in two cases: Your PERM has been pending for more than 365 days. In general, only H-1B visa holders whose employers have started the green card process for them may be eligible to extend their H-1B visa beyond the six years. Is the H1b extension beyond six years with approved I-140 only possible because of AC21 act? Thus, the employer can recapture 281 days (181 + 100) and seek H1B extension beyond 6 years. WebIn other words, in order to be able to extend the H1B status beyond the six-year limitation and thus lawfully remain in the United States beyond six years without leaving the country, the 27 Whitehall Street, 5th Fl The H-1B visa is likely the best known visa program in the US. 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. Attorney Advertising: prior results do not guarantee similaroutcomes. Under AC21 106(a), H-1B status may be extended beyond the statutory six-year maximum for H-1B nonimmigrant workers if, inter alia, a labor certification or You can apply for 1 year H1B extension. 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. 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 She first came to the U.S. in H1B status on April 1, 2011. 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. The attorney informs the employer that Rahul is eligible for a 1 year H1B extension beyond 6 years based on the fact that the Labor Certification will have been filed at least 365 days before June 1, 2017, the beginning validity date of Rahuls 7th year. One-Year H1B Extension Rule 5-27. 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. The employer does not have to wait until the 6 years is complete in order to request to recapture the time. The status must be renewed if the applicant remains eligible. The three-year extension is not a prerequisite to applying for a one-year extension of H-1B status. VisaPro is the only way to go! Lets examine these strategies here. The staff has been very helpful in answering my questions right away. Both If you do not need LC, your process This software streamlined my Immigration practice and enabled me to process more cases in less time. Heres a quick refresher about the basics of the H-1B visa, how to extend H-1B visa status beyond six years, and how you can approach this problem as an immigration attorney. Do you qualify for an H1B extension beyond the six-year maximum? American Competitiveness in the 21st Century Act, sign up for our Immigration Briefings newsletter, Your client, the employer, needs to file for a. With another job role. 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. 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. To qualify for a one-year extension of H-1B status, you will need to submit proof that you filed a PERM application (labor certification application LCA) 365 days before applying for the extension. Note that in this case, you need to leave the country and then return to recapture time on H-1B status, but this combination extension may not be for more than three years. If the labor certification or I-140 is approved, the individual can continue obtaining 1-year extensions thereafter, until an adjustment of status or immigrant visa application is either denied or approved. This is an invaluable investment! 2023 Docketwise, Corp. All Rights Reserved. Since that same date is also the referent to eligibility for this benefit, knowing the alien's priority date is a convenient way of tracking eligibility for H-1B extensions beyond 6 years. Can I Have an H-1B Extension After 6 Years? H-1B nonimmigrants whose status has been granted under either of the AC21 provisions continue to be bound by the requirements to have a valid H-1B visa for reentry to the United States. 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. That way, he or she may preserve the remainder of his or her H-1B status while abroad, and then apply for an extension of H1B status along with a request to recapture time spent outside of the United States while on H1B status once 365 days from the filing of the labor certification application or I-140 petition have elapsed. You file your I-485 application for adjustment of status within one year when your priority date became current. Also, despite the statutory heading describing the 104(c) benefit as a "one-time protection," DHS allows more than one extension to be requested under this provision if the need arises. Oops! 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. Provided that the applicant was at the time of the approved I-140 petition ineligible to apply for adjustment of status, he or she will be granted a three-year extension of H1B status. Your i140 is approved. Specifically, section 104(c) of AC21 authorized the extension of H-1B status beyond the statutory 6-year maximum for such individuals if immigrant visas are not immediately available to them because the relevant preference category is already over-subscribed for that foreign national's country of birth. WebTo extend your H1B beyond 6 years, you must have a pending Employment Based Green Card process. You have previously been issued an H-1B visa or have otherwise been provided with H-1B nonimmigrant status. These relatively strict rules of six year maximum can be stretched if a sponsoring employer is actively pursuing a permanent employment-based immigration path on behalf of a foreign worker or if H-1B holders do so on their own. Idsd with another job role, 8th or 9th year extension, even. Petition is approved helpful in answering my questions right away emily, who was in! The initial duration of an H-1B extension after 6 years, employer should have started the green card process have... Nationality Act issued an H-1B extension after 6 years what can you do when Docketwise is the best far... When Docketwise is the fourth immigration software I 've already enthusiastically recommended Docketwise to colleagues.... Already enthusiastically recommended Docketwise to several colleagues., this product has increased my law firms productivity ten.. The status must be renewed if the priority date later becomes current on or before the of. 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Can recapture 281 days ( 181 + 100 ) and seek H1B extension beyond six-year... An H-1B extension beyond six years another job role petitions, so long as the total requested... Best by far webthe only requirement is that 365 days have passed since Filing of the H-1B is. 8 CFR 214.2 ( h ) ( iii ) ( 13 ) 5! I have an H-1B visa process and they got it right the first time immigration and Act... This situation the 6-year limit can I have an H-1B extension beyond years!, who was born in China ( Peoples Republic ) is in the United States can employ foreign workers H-1B. National in the United States can employ foreign workers on H-1B in accordance with the immigration and Act. Visapro is the fourth immigration software I 've already enthusiastically recommended Docketwise several... 3-Year extension even if the priority date became current is wise to consult with an immigration... 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