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. An example of data being processed may be a unique identifier stored in a cookie. If you have an immigration issue or unclear about your visa options. Henri and his employer should first determine if Henri has any recapture time. dependents file I-539 concurrently with H1 extension applications, 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]. WebExtending H1B Status Beyond the 6 Year Statutory Limit. 6 months before the end of Henris sixth year, on 04/01/2015, the employer files the Labor Certification. |All Rights Reserved|, The Labor Condition Petition (LCA) for H-1B Workers, H-4 Visa Status for Dependents of H-1B workers, Changing Jobs in Midstream: H-1B Portability, The H-1B to Green Card Transition Through PERM Labor Certification, H-1B for Entrepreneurs and Startups (Self-Sponsorship), What You Need to Know About H2B Visa Recruitment Agencies, Analyst from India Receives H-1B Approval, H1B for Consultant: Requirements, Data, Processing, Project Manager H1B Visa Approval, Requirements, Data and Processing, Unlocking the Secrets of the H1B for Developers, Sample K-1 Declaration: Letter of Intent to Marry Within 90 Days, Perm Denial Without Audit: Reasons For Denial, To have an approved Immigrant Petition for Alien Worker Form I-140 petition for one of the employment based preference petition: The EB-1 (priority worker), EB-2 (professional with an advanced degree or person with exceptional ability), or EB-3 (highly skilled or experienced worker) preference categories, To be otherwise eligible for adjustment of status from H-1B worker to employment-based visa in one of the three mentioned preference categories, but the per-country limits or worldwide cap on employment-based immigrant visas (check Visa Bulletin. 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. Yes, Tonys employer can request that the time he has spent outside the U.S be recaptured. Law offices would be well-served to at least give it a try. So, what happens if your client is reaching the end of their six-year H-1B and they still havent gotten a green card? Because in recent years over 250,000 petitions have been submitted for only 85,000 H-1B visas, USCIS uses a lottery system to determine which H-1B petitions are selected for processing.The lottery that takes place to select the new visa holders in the spring gets a lot of attention, and this year USCIS held two separate lotteries. If you do not need LC, your process Unfortunately my Perm got denied. You can apply for 3 year H1B extension. H1B petition, i.e. 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. If you are outside the U.S., you need to apply for an immigrant visa within one year. 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. Now my employer is applying my Perm again. Tony is in the U.S. in H1B status. None come close. 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. y f$;~nfMnV#~~i2ky5)}d:=qQR}H;B3|2v!D}]NyY.q5xo5%!sz9vsDk&pqYV_$`%[;}U)ceNn[X*sX%*|_^_ rW For example, for an AC21-qualified alien who has six more months of regular 6-year eligibility beyond his or her current H-1B end date, the employer can file a single petition asking for up to 1.5 years of extension, comprising the 6 months of regular 6-year eligibility and the maximum 1-year-at-a-time of. In many such cases, an H1B worker may be eligible to extend his or her stay incrementally for up to three years per extension request, or in one-year increments, while at least one of the followinghis or her employer's application for an immigrant visa (USCIS form I-140), PERM (permanent labor certification request) or applicant's petition to adjust to permanent resident status respectively, remainspending. Recently, H-1Bs are back in the news as more than 100,000 employment-based green cards are set to expire soon. Applicants 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. The employer does not have to wait until the 6 years is complete in order to request to recapture the time. t 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. In order to obtain the three-year H1B extension beyond 6 years, the employer must submit a copy of the I-140 approval notice showing that the Priority Date is not current. Both H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. H1B RFE under Donald Trump . Section IV Processing of H-1B petitions where there is a question of the affect of H-1B portability under 105 of AC21. 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 In order to obtain the one year H1B extension beyond 6 years, the employer should submit: DID YOU KNOW 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 (pd 2007) I am thinking of changing my employer to (Company B) using AC21 but HWr}W#ybfTQ+eE'b*_Pt6R Call now and book your consultation with Richard Herman if you want to file an H-1B extension petition. USCIS has clarified that an H-1B holder does not have to prove that the I-140 or Labor Certification was filed before the end of the sixth year, only that one of the applications was filed at least 365 days before the new requested validity date. The three-year extension is not a prerequisite to applying for a one-year extension of H-1B status. 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. Attorney Advertising: prior results do not guarantee similaroutcomes. This feature used by employment-based adjustment applicants considered to have ported the petition filed on their behalf to the new job offer is referred to as portability.. 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 However, current practice requires that, if the H-4 family member also holds H1B status, or at one time held H1B status, he or she must independently be eligible for an extension of H1B status.18 H-4 family members who hold or have held H1B status should be aware of this distinction, and assess what avenues they may have for maintaining lawful status in the United States without relying on their H-4status. AC21 stands for American Competitiveness in the 21st Century Act. 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. However, Tony has spent an aggregate of 400 days outside the U.S. since he came to the U.S. in H1B status. After employer started the Green Card Process, depending on the processing stage ( PERM, I-140, I-485), you are eligible to apply for 1 year or 3 years H-1B extension. What are Henris options? 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. WebAnswer: The allowable time for H-1B status in U.S. is 6 years. Through premium processing, U.S. In 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 H1B worker must be on the way to an immigrant benefit or adjustment of his or her nonimmigrant status to a permanent residentstatus. You can apply for 3 year H1B extension. The filing date of the ETA 9089 PERM application will be recorded as the priority date of the case and will be listed as such on the receipt notice for the I-140. Workers in the United States on nonimmigrant H1B status are limited to a maximum stay of six years in the United States on H1B status. The foreign national in the employment based category needs to meet certain requirements to be eligible for a three-year H-1B extension. (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs. Your i140 is approved. 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. The employer can then file an H1B petition requesting a beginning validity date of 04/01/2015, which is at least 365 days after the filing of the Labor Certification. Manage Settings Print. {:d *qzMpDmU@P4@ 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. 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. dates attached, and will become invalid if I-140 is not filed within six Recently, H-1Bs are back in the news as more than 100,000 employment-based green cards are set to expire soon. Phone: (212) 202-0342 However, under the American Competitiveness in the Twenty-First Century Act (AC21), some H-1B holders are permitted to extend their status beyond six years. : E$C;oH6-2, UOvZ8lChGdn\tt WMzWUgm RiQMn\Y%Ztj.&3A6n4QEZRt9^q-_O5~iC' HV 1184(g)(4)), any alien who--, (1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and. 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. Unfortunately, the AC21 does not allow a foreign worker to extend an H-1B if he or she is a beneficiary of a family-basedimmigrant petition. The following individuals are eligible for extension of H1B visa beyond six years for renewable ONE-YEAR time periods (AC 21 106 (a)) Individuals who have filed for PERM labor certification more than ONE YEAR prior to reaching the six year limit With another job role. The interface is very user friendly and intuitive. 10004 Her first H1B approval notice was dated October 1, 2010 to September 30, 2013. WebUSCIS Clarifies Position on AC21 H-1B Extensions. Do I have to use an EAD to use AC21? 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 No. vUO?6P2%/RZx/(0"CJ5=m1~?JTG,JGh!Ev6l%f3#fp@D`t| p$2~? 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. Guidance from USCIS memo from Michael Aytes (December 27, 2005): AC21 104(c): Aliens chargeable to oversubscribed countries, An H-1B nonimmigrant who is the beneficiary of an approved employment-based first, second, or third preference petition, but who cannot apply for adjustment of status solely because his or her priority date is not current due to the "per-country" limits on immigrant visa availability (i.e., the alien is chargeable to a country that has become "oversubscribed"), may receive "an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon. In order for an H-1B non-immigrant to receive an extension of stay Find the best ones near you. Henri is in the U.S. working pursuant to H1B status. They were very helpful in all phases of the H-1B visa process and they got it right the first time. The American Competitiveness in the Twenty First Century Act of 2000 (AC21) law allows H1B extensi KNH October 10, 2018, 2:32pm #3. Furthermore, in order to return to the U.S. in H1B status, they have to go through the H1B Cap again by surviving the H1B lottery. Response: There may be an option to extend your H-1B beyond six years under AC21 if your denied I-140 is appealed. 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. %%EOF At least 365 days have elapsed since your employer filed a labor certification application (or an I-140 petition if a labor certification was not required). 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. For certain H-1B1 applicants from Chile and Singapore, the visa is only available in one-year increments, and it can be renewed each year. If the employer files via Premium Processing, USCIS should make a decision within 15 calendar days. =Px(Y(vpdQyTk So it is recommended that H4 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." 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 What are his options? Deny the labor certification application; Grant or deny adjustment of status or application for an immigrant number. The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. WebThe law also permits one-year extensions of H-1B status beyond the 6th year, even without an approved I-140 immigrant visa petition. Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. I like that Docketwise is so easy to maneuver and use. If you meet the above 2 scenarios, you are eligible for the extension beyond 6 years. The principal H-1B worker procures the three or one-year extension of stay. Henris sixth year ends on 10/01/2015. WebThe employer can request that 365 out of the 400 days be recaptured, and request 3 years on the H1B extension petition. 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 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). 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)]. The fiscal year of 2018 saw a dramatic increase of RFEs compared to the same time frame of last year. 27 Whitehall Street, 5th Fl He has already entered his sixth year of H1B and his employer has not file the Labor Certification yet. With this option, the employer would be requesting that USCIS grant an extension of H1B for at least 18 monthsRecapture Time + 1 year. Our law firm has extensive experience for more than 15 years in providing immigration services in the field of immigration law. 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. I got H1 extended till May 2024. Rahul is working as an Accountant at an Accounting Firm. 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. 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, Under certain circumstances, %PDF-1.6 % AC21 Extension to get EAD for H4. Thanks Anil. Partial days spent in the U.S. count against the six years. 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. Note that the burden of proof rests on the H-1B applicant. While there are several strategies available to seek an H1B extension beyond 6 years, its important that employers and H1B employees be aware of the specific options that are available in their situation so that they are not caught unaware leading to employment gap or having to leave the U.S. And while perm was under process, they applied for H1b extension for one year. 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. 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. WebThe only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition. Note that a person's eligibility for 3-year extension beyond the 6th-year limit is based on visa number availability at the time of filing H1B petition, not on a later date when the extension is actually reviewed. Unfortunately, the news hasnt always been positive. 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. AC21 extension is possible only in two cases: Your PERM has been pending for more than 365 days. 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. Upon further research I believe i should be eligible for h1b Citizenship and Immigration Services USCIS decides upon petition within 15 days, so you can speed up the process and apply for the three-year extension instead of a one-year extension of your H-1B visa. Depending on your situation, you may obtain extensions in Fax: (212)964-0440, Copyright 2019 My Attorney USA. 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. This way, as the client grows and hires more H-1B visa holders, theyll be prepared for timelines that extend beyond six years. Her I-140 was just approved but she has been informed that she is unable to file for Adjustment of Status as her priority date (set by the Labor Certification filing date) is still not current, as she is a national of China. WebSome H-1B holders who have had a Labor Certification Application LCA pending for more than one year may be able to extend their H-1B visa beyond the 6-year limit. Thanks! So, you may be wondering whether you can continue to extend your H-1B once your priority date is current. However, the 365-day requirement leads to ambiguity for applicants who begin their adjustment of status process within 365 days of the expiration of their H1B status.
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