H-1B Extensions Beyond the Six

We have had many questions from clients regarding who may be eligible for an extension of their H-1B visa status beyond the standard six-year eligibility. The answer to this question is not entirely clear right now, but this memo will summarize what is clear and highlight areas in which the law is still developing. As many of you likely know, the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) provides new opportunities for the extension of H-1B visas in certain situations. Two provisions control such extensions, section 106(a) and section 104(c). Since AC-21 was passed in October of 2000, there have been several memorandums released by the USCIS to help elucidate some of the more confusing aspects of this law. These memos have been incorporated herein to help explain the current status of the law. Section 106(a) On May 12, 2005, William R. Yates, Associate Director of Operations for the United States Citizenship and Immigration Services, issued a long awaited memo clarifying some of the most confusing aspects of AC-21, which was had not been discussed in detail by the Service since August 4, 2003. The May 2005 memorandum discussed some of the issues raised by the August 2003 memo, specifically addressing “seventh year extension” H-1B issues. The May 2005 memo concludes that alien beneficiaries who are otherwise eligible qualify for H-1B visa status extensions in one year increments when 365 days or more have passed from the filing of any application for labor certification or an EB immigrant petition. Most recently, Mr. Yates issued another memo addressing some AC21 issues on September 23, 2005 . Regarding AC21 section 106(a), the memo notes that alien beneficiaries who have a “pending or approved” labor certification application with the Department of Labor or a “pending or approved” I-140 petition with USCIS for more than 365 days are eligible for a seventh-year extension of their H-1B status when they are otherwise eligible for such an extension. In other words, the alien beneficiary must have filed either the labor certification application or the I-140 at least 365 days before the proposed start date of the H-1B renewal in order to be eligible for the seventh year extension. Furthermore, the alien must still be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, or else the extension of stay request will be denied. Extensions are available in one-year increments only until such time as either the labor certification application or immigrant petition is denied (and timely appeals have been exhausted) or an application for adjustment of status is granted or denied. For example, suppose you are an H-1B holder whose six years expires on May 1, 2006 . You would like to adjust your status, and your employer is willing to sponsor you, but you fail to file your labor certification application until August 1, 2005 . You are married to another H-1B holder, and so you would like to switch to H-4 status after your H-1B expires until August 1, 2006 , when 365 days have passed from the time of filing your labor certification application so that you may then apply for your H-1B extension. However, since you will not be in H-1B status on August 1, 2006 , the time that the 365 days has run, you are not eligible to apply for an extension beyond the sixth year of your H-1B. You must begin the labor certification or immigrant petition process more than one year before your H-1B six-year eligibility expires, or else you will be unable to get an extension under this provision of the law. Section 104(c) The other section of AC21 that affects H-1B extensions is section 104(c). This section applies to individuals who have had both their labor certification and immigrant petition approved, but their case is stalled due to per-country limitations on the issuance of immigrant visas. Section 104(c) of AC21 states “One-Time Protection Under Per Country Ceiling: . . . any alien who . . . (1) is the beneficiary of a petition . . .and (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, 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 other words, an alien beneficiary who holds an approved I-140 but is subject to visa retrogressions is eligible for an extension under this provision. In such a case, the beneficiary is eligible for indefinite three-year extensions of H-1B eligibility beyond the six year limitation until such time as their priority date becomes current and there is an immigrant visa available to them. The three-year extensions are only available to those holding an approved I-140 petition and are merely waiting for a visa to become available. Three-year extensions are not available, therefore, to those whose I-140 is still pending. Although section 104(c) is silent regarding a time requirement like the 365 day requirement in section 106(a), some ambiguity remains as to whether there is such a requirement. In his September 23, 2005 memo, which was an amendment to the Adjudicator’s Field Manual, Mr. Yates specifically states that an extension will be granted if the filing date of a “pending or approved EB immigrant petition is 365 days or more prior to the requested employment start date on the H-1B petition.” Despite the fact that the plain language of AC21 contains no reference to a 365 day requirement for approved I-140 petition, this language instructs the adjudicators that even with an approved I-140, the 365 day requirement remains. We will keep you updated as more memos are forthcoming. ______________________________________________________________________________ 本文由範毅禹律師事務所提供 本律師事務所精辦各類勞工應聘及專業移民申請 (包括H-1，L-1，EB-1，EB-2，NIW，勞工卡，綠卡等申請)。所有申請由多位美籍律師及擁有15年經驗的範毅禹律師親自處理，我所並特設中英移民網站。內有最新移民新聞資訊及由律師主持的移民問答集，歡迎讀者流覽查詢。 www.Fan-Law.com CALIFORNIA : Fan & Fitzpatrick, P.A. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] MARYLAND : Fan & Fitzpatrick, P.A. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]