I continue to receive e-mail questions about maintaining H-1B status while awaiting an adjudication of a pending application for adjustment of status. When I recommend against doing this, except in unusual circumstances, I typically receive the question “But what happens if my AOS is denied?” Without going into all of the reasons why I don’t consider that a serious concern, let’s explore a very specific issue for a moment.

Assume that one has been in H-1B status for four years and now applies for adjustment of status. The applicant has a choice: He or she may continue to use H-1B status or may switch over and use an EAD/AP combination. Putting aside the “what if something wholly unexpected happens” argument, it is pretty clear that the EAD/AP combination offers greater flexibility than trying to maintain H status. With the CIS about to extend the validity of those documents to three years, it is also less expensive to use EAD/AP in place of an H.

For argument’s sake, however, let’s assume that the applicant insists on maintaining H status while his AOS is pending. The average AOS processing time is three to five years. This will put the applicant beyond the six year limit for H-1B stays. No need to worry, the AC21 legislation allows for extensions of stay beyond six years. Right?

The answer is, perhaps. While the AOS is pending, the applicant may receive applications beyond six years. Let’s assume, however, that the “what if” situation occurs and the AOS is denied. Well, in that case, conventional Internet wisdom teaches us that the AOS applicant can just stay here in H status. As is often the case, conventional Internet wisdom is wrong.

In a policy memo dated April 24, 2003 and titled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator's Field Manual Update AD 03-09,” the CIS took the following position:

“(8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition. As discussed in of the AFM, if the filing date of the labor certification application or the EB immigrant petition is 365 days or more prior to the filing date of the extension application, and the application is adjudicated on or after November 2, 2002 (the effective date of the legislation), the alien is eligible for an extension of H-1B status beyond the sixth year. The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made:

to deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; to deny the EB immigrant petition, or to grant or deny the alien's application for an immigrant visa or for adjustment of status.” [Emphasis added]
In this example, the applicant would no longer be eligible for H status beyond six year. Since the applicant remained in H status while waiting for his AOS adjudication, all of that time would count against the six year limit. The applicant would not be allowed to remain in the US in H status
following the AOS denial because that would involve a post-six year stay.

In effect, by insisting on remaining in H status while waiting for his AOS to be adjudicated, the applicant guaranteed that he would not be able to remain in H status if the AOS was denied.