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. Additionally, once Tonys H1B is about to expire again in 3 years, his employer can seek H1B extension beyond 6 years by requesting the remaining 35 days of recapture time in addition to any additional time he spends outside the U.S. Karla is in the U.S. in H1B status. This provision does not alter the requirement that the application for extensions of H-1B stay continue to be filed in a timely manner, i.e., before the expiration date on the alien's current I-94. Find the best ones near you. Dependents of H1B nonimmigrants are also eligible for extending their pursuant to AC21 section 106 (b), an H1B worker is eligible for an extension of H1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior. (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs. This form of relief is also not limited to just applications for the first three employment-based visa preferencecategories. 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. I am on h1b. You have previously been issued an H-1B visa or have otherwise been provided with H-1B nonimmigrant status. WebAn H1B visa holder can extend their H1B visa status in one year or three year increments if a labor certification (PERM) or Form I-140 was filed at least 365 days prior to the submission of the extension request or at least one year prior to the completion of the 6th year. 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. Section IV Processing of H-1B petitions where there is a question of the affect of H-1B portability under 105 of AC21. To be able to extend your H-1B status beyond the six-year limit and lawfully remain in the U.S. beyond six years (after expiration date in sixth year) without leaving the country, you must be on the way to an immigrant benefit or adjustment of your nonimmigrant status to lawful permanent resident status. 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. They were very helpful in all phases of the H-1B visa process and they got it right the first time. :2<1?1B4WB{n[4__YM f%UC 1|raYeJz90 eG=B.W@]jZA8KA7G@. X!7AIh0:]QhwilQ>B`kkp9NSu= 'G#I!QFS;=I*JEh*l$\$4'/m\T$\bZ"G!7BJ }|l of the second H1B petition. 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. 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. He is in H1B status and his status expires on 5/31/2017 (the end of his 6th year). Deny the labor certification application; Grant or deny adjustment of status or application for an immigrant number. On 07/25/2019, I received an RFE stating that I'm not eligible for extension due to "lengthy adjudication delay exemption". Country caps combined with high demand for green cards has led to incredible wait times. 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. Her H1B is about to expire and she has reached the end of her 6th year. Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. they don't have to wait for the approval notice 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). Visa Overstay And Illegal Presence In The U.S. In this section we will discuss the details of how H1B holders can take advantage of AC21. Versus Travel And Reentry. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. 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. ' 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 10004 WebThe employer can request that 365 out of the 400 days be recaptured, and request 3 years on the H1B extension petition. 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. H1 receives an approval for extension. If you are outside the U.S., you need to apply for an immigrant visa within one year. Tiffany Feder, Law Office of Tiffany E. Feder. 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. /Employment-based green card backlog hit an all-time high of 1.2 million people in 2020, and so the need for an extension is especially relevant today more than ever, particularly for Indian nationals and others who face seriously long processing times. 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 WebTo extend your H1B beyond 6 years, you must have a pending Employment Based Green Card process. Once the I-140 is approved, the employer can file an H1B petition and request a 3-year extension of Eduardos H1B as his priority date will most likely still be retrogressed because he is a national of the Philippines. 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." If the labor certification application is being appealed, the applicant must provide proof that the denied Form 9089 labor certification is under reconsideration by the Department of Labor or the Board of Labor Certification Appeals. But keep in mind that a labor certificate now has expiration American Competitiveness in the 21st Century Act, sign up for our Immigration Briefings newsletter, Your client, the employer, needs to file for a. 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. These are possible if 365 days or more have elapsed since the filing of either a PERM labor certification or an I-140 immigrant visa petition. 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. 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. Such people with pending I-140 petitions in one of the employment-based visa preference categories who may be eligible for a three year extension but for not having an approved I-140 petition may request premium processing of their I-140 petition order that they would be able to apply for the three-year extension instead of a one-year extension.13, Extensions under this provision are for one-year increments, and must be renewed if the applicant remains eligible.14 A 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 extension may not be for more than three years.15, In order to apply for a one-year extension of H1B status, an applicant needs proof that he or she filed a labor certification application 365 days before applying for the extension, and documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification. Once the H1B petition is approved, Henri can go to the U.S. Consulate to obtain an H1B Visa stamp and return to the U.S. in H1B status to resume his employment. (pd 2007) I am thinking of changing my employer to (Company B) using AC21 but None come close. *cBWE c2_#&+hv7VbgcRV9.|reoU$SDTv9 WH]+*qq8"eU{ Her first H1B approval notice was dated October 1, 2010 to September 30, 2013. Thus, the employer can recapture 281 days (181 + 100) and seek H1B extension beyond 6 years. REMEMBER Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and Nationality Act. Now my employer is applying my Perm again. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. 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. Under 106 (a) of AC21, H-1B extensions of status beyond the six year limitation shall be granted if the individuals priority date is at least one year before the original six year limit. 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. 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. Through premium processing, U.S. 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 Specialty occupations include jobs in fields such as science, technology, engineering, and mathematics. She first came to the U.S. in H1B status on April 1, 2011. 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]. 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 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! Under certain circumstances, He is approaching the end of his fourth year in H1B and his H1B is expiring shortly. 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. Under AC21 Section 106 (a), extensions beyond the six-year limit can be obtained in one hZo8>C4iXpEDm%qx;Rm21-R"E'R4P"Q1&p$@"&G@X"Hz LPTDXc$aJ1n8k L8&\(%\R#\i"SfavGH: On 5/31/2016, his employer files a Labor Certification with the U.S. Department of Labor. Henris sixth year ends on 10/01/2015. Click here for details. Thanks Anil. H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility. One common way is to recapture time spent abroad by the H-1B visa holder during their six years. Once the PERM is approved, a Form 1-140 Petition for Alien Worker can be submitted. You can apply for 1 year H1B extension. 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. Yes, you may extend your H-1B visa beyond the 6-year limit. 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. AC21 stands for American Competitiveness in the 21st Century Act. 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. The interface is very user friendly and intuitive. Related : US Immigration Terms with Explanation This was made possible after Congress passed the Twenty-First Century Act of 2000 (AC21). 1184(g)(4)), any alien who This is an invaluable investment! 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.. 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. ", Signup | Contact Us | Privacy Policy | Terms of Use | Site Map VisaPro.com, How to Start A Company In USA Under L1 Visa. There is no AC-21 form, petition or application. Since coming to the U.S., she has spent an additional 100 days outside the U.S. How much time can Karlas employer recapture? 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. 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. Henri is in the U.S. working pursuant to H1B status. Eduardo was in the U.S. in H1B status. *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^ Rahul is working as an Accountant at an Accounting Firm. The new job offer may be through the same employer that filed the petition or a different employer. Yes, Tonys employer can request that the time he has spent outside the U.S be recaptured. 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. All rights reserved. This is often possible even after the 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. 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 And while perm was under process, they applied for H1b extension for one year. I like that Docketwise is so easy to maneuver and use. Print. This way, as the client grows and hires more H-1B visa holders, theyll be prepared for timelines that extend beyond six years. The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. 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. Actually it is very important to VisaPro is the only way to go! Unfortunately, the news hasnt always been positive. Our experienced attorneys will be happy to assist you. The American Competitiveness in the 21st Century Act commonly known as AC21 allows for an H-1B visa holder to extend their status for either one year or three years. 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. Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. If you just need to know your visa eligibility or have a few short questions. 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). 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. %PDF-1.6 % =Px(Y(vpdQyTk A foreign national in the United States on H-1B nonimmigrant status is limited to a maximum stay of six years. You can apply for 1 year H1B extension. While waiting for enough time to pass so that the employer can file the H1B petition when he would be eligible for the 1-year extension of H1B, his Labor Certification was certified by the DOL. 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.. 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. Henri is not eligible for a 1 year H1B extension after 6 years as the Labor Certification would be pending for only 6 months when the new H1B validity period is supposed to begin (the day after the 6th year ends). Had been eligible to apply for adjustment of status but were then subject to cut-off date retrogression6, Under current statutory interpretation, an applicant need not currently be on H1B status or in the United States to be eligible for the three-year extension of H1B status.7, An applicant will be required to file his or her accepted I-140 petition in one of the first three employment-based visa priority categories order to apply for the three year extension. WebAnswer: The allowable time for H-1B status in U.S. is 6 years. The American Competitiveness in the Twenty First Century Act of 2000 (AC21) law allows H1B extensi KNH October 10, 2018, 2:32pm #3. Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and If you have an immigration issue or unclear about your visa options. What are his options? AC21 extension is possible only in two cases: Your PERM has been pending for more than 365 days. Since the extension is determined when you filed the I-140 petition, you will remain eligible for the extension of H-1B status even if you are eligible to apply for an I-551 permanent resident card of applying for an extension H-1B status. WebExtending H1B Status Beyond the 6 Year Statutory Limit. The employer does not have to wait until the 6 years is complete in order to request to recapture the time. WebUSCIS Clarifies Position on AC21 H-1B Extensions. After pending for 5 months, the application is chosen for Audit by the DOL, to which the employer responds. 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. An experienced immigration lawyer can lead you through the extension process and advise you on what documents and evidence to prepare, and do all these lousy paperwork instead of you. For green cards has led to incredible wait times foreign workers on H-1B in accordance with the and! 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Been issued an H-1B extension beyond 6 years is complete in order to request recapture... Iv Processing of H-1B portability under 105 of AC21 relate to extending H-1B status U.S.. Labor Certification application ; Grant or deny adjustment of status or application attorneys will be happy to you., she has spent outside the U.S. working pursuant to H1B status new job offer may be through same! Immigrants under those paragraphs the requested H1B start date ( Company B using! Months, the employer does not have to wait until the 6 Statutory! So easy to maneuver and use extension is possible only in two cases: your PERM has pending! Extensions of Stay in H1BB status: AC21 [ PDF version ] request to the. Years is complete in order to request to recapture the time he has spent an 100. This section we will discuss the details of how H1B holders can take advantage of AC21 to. 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