AC21 Extension to get EAD for H4. 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. He also exhausted all of his recapture time. beyond. Once approved, Eduardo can come back to the U.S. and resume employment. Now they need to start the process all over Can he recapture the time he spent outside the U.S. now, before he has reached the end of his sixth year? In other words, you have to apply for the green card. Her H1B is about to expire and she has reached the end of her 6th year. DHS has confirmed that the petition must be approved in order to benefit from AC21 104(c) extensions. Domestic employers in the United States can employ foreign workers on H-1B in accordance with The Immigration and 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. There are several strategies available to seek an H1B extension after 6 years. VisaPro is the only way to go! Docketwise enables thousands of immigration attorneys to streamline their practices, including attorneys who handle H-1B visas. 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. Attorney Advertising: prior results do not guarantee similaroutcomes. 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. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. Specialty occupations include jobs in fields such as science, technology, engineering, and mathematics. < 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 . H1B extension pending after 6 years. It's everything I'd wished for in an immigration forms software. H4 status beyond the 6-year limit. The applicant is required to file an approved EB immigrant petition I-140 petition in one of the first three employment-based visa priority categories. Go back to Faculty, Staff and Researchers, International Student and Scholar Services, International Student And Scholar Services Staff, Certificate Of Eligibility (I-20 or DS-2019) Application Process. /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. Emily, who was born in China (Peoples Republic) is in the U.S. in H1B Status. I suggest that your Green Card process is initiated at least in the 4th year of 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. The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. If the employer files via Premium Processing, USCIS should make a decision within 15 calendar days. AC21 104(c) is applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of a per country limitation to which that alien is subject or, alternatively, if the immigrant preference category applicable to that alien is, as a whole, "unavailable". Deny the labor certification application; Grant or deny adjustment of status or application for an immigrant number. 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 staff has been very helpful in answering my questions right away. Also, documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification is required. 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 t Enacted in 2000, the American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing foreign nationals to change jobs ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). 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. See AC21 Section 106(a). 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. Your i140 is approved. Continue with Recommended Cookies. (AC21). 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. 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. 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. H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. Another benefit of AC21 for H1B workers is that in case of "H1B transfer," Preparing A Statement About Changing Nonimmigrant Status, Applying For A Change Of Status (COS) In The U.S. I have tried other Visa services, but VisaPro is the best by far. If you are outside the U.S., you need to apply for an immigrant visa within one year. 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. If Henri has at least 6 months of recapture time, the employer can request that USCIS allow Henri to recapture the 6 months he was outside the U.S. until 04/01/2015. g ia abpl(PWfep a LU]whhY0<0 WebExtensions under this provision are for one-year increments, and must be renewed if the applicant remains eligible.14A 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 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. 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. 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. But keep in mind that a labor certificate now has expiration Print. H-4 family members of H-1B workers are eligible for visa extension (even beyond six years) if: Still note that if your H-4 dependents hold H-1B, or at one time they held H-1B status, they must independently be eligible for a visa extension of H-1B. Unfortunately my Perm got denied. 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.. To establish the alien's priority date, USCIS may accept a copy of the H-1B alien beneficiary's Form I-140 petition approval notice. This form of relief is also not limited to just applications for the first three employment-based visa preferencecategories. And while perm was under process, they applied for H1b extension for one year. See AC21 104(c). Thanks! Most H-1B workers whose current employer or a prospective employer (if they change jobs) wants to sponsor their green card petition go through applying for an employment-based immigrant visa. To have been eligible to apply adjustment of status application but immigrant visa number is not available. 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). 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 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. Actually, the correct term is H status. immigrant visa number is not available to you, you may apply for three-year extensions of your H-1B status. 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. 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. Your i140 is approved. 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. 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". This is often possible even after the 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. So, what can you do when Docketwise is the fourth immigration software I've used in my career. WebUSCIS Clarifies Position on AC21 H-1B Extensions. Copyright 2023, Temple University. 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. Recently, H-1Bs are back in the news as more than 100,000 employment-based green cards are set to expire soon. The priority date in an employment-based case is the date that a labor certification application was first filed, or, for those categories exempt from the labor certification requirement, the date on which an employment-based preference petition (I-140) was filed with USCIS. It is wise to consult with an experienced immigration lawyer and assess your particular situation in this situation. 6 months before the end of Henris sixth year, on 04/01/2015, the employer files the Labor Certification. Hi, I am on my 6 years of H1b visa, which expired 05/1/2019. dependents file I-539 concurrently with H1 extension applications, WebUnder act AC21, H1B can be extended beyond 6 yrs if: Applicants labor application for Employment based green card purpose is pending for more than 365 days. If the employer can prove that the Beneficiarys presence in the U.S. falls under one of these 4 categories, the H1B status can be extended indefinitely. 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. 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. She first came to the U.S. in H1B status on April 1, 2011. Foreign nationals in H1B status who work in the U.S. 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. 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. endstream endobj startxref H1B Extension beyond 6 years and AC21 Rule. In this article, however, we arent discussing H-1B recapture - were discussing full extensions beyond the six years, using AC21. 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. WebWhat is AC21 for H1B Extension H-1B visa status is valid for a maximum of six years: maximum three-year at one time, but may be extended multiple times with the total not 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. Click here for details. 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. 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. English||Copyright 2007-2023 ImmigrationRoad.com, AC21 - H1B Extension Beyond Six-Year Limitation, American Competitiveness in the 21st Century Act of 2000 (AC21). 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. WebAdditionally, H-1B nonimmigrants reaching the six-year limit of stay and with pending or approved I-140s but waiting for their Priority Date to become current, were allowed to extend their H-1B status in three-year increments until decisions were made on their adjustment of status applications. remember that H4 status is not automatically extended when the primary WebAnswer: The allowable time for H-1B status in U.S. is 6 years. A select list of videos available through U.S. Embassy websites. work part-time but reside abroad and commute to the U.S. A copy of the I-140 approval notice or receipt notice from USCIS showing that the I-140 was filed at least one year before the end of the new H1B validity period; OR, A copy of the certified Labor Certification (ETA Form 9089) with a filing date of at least one year before the end of the new H1B validity period (the Labor Certification must either be unexpired or accompanied by an I-140 receipt notice showing that the I-140 was filed before the Labor Certification expired); OR. Your six-year total includes all the time you held H1B's for all employers you worked for, as well as any time you were in H4 status. 0 Once approve, Eduardo can come back to the U.S. and resume employment. Henri is in the U.S. working pursuant to H1B status. Typically, the initial duration of an H-1B visa is three years, and it can be extended for a maximum of six years. I've already enthusiastically recommended Docketwise to several colleagues., This product has increased my law firms productivity ten fold. The consent submitted will only be used for data processing originating from this website. You can apply for 3 year H1B extension. 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. This software streamlined my Immigration practice and enabled me to process more cases in less time. Eligibility For Change Of Status Applying In The U.S. 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. For the green card may file for an immigrant number of status application... Is in the U.S, and it can be extended for a maximum of six.! My career arent discussing H-1B recapture - were discussing full extensions beyond the six years,... But VisaPro is the fourth immigration software I 've already enthusiastically recommended Docketwise to several colleagues., product... 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