3563 0 obj <> endobj The principal H-1B worker procures the three or one-year extension of stay. Even though AC21 allows applicants to ask for H-1B visa status beyond the initial six years, theres no specific form for extensions beyond the initial six years based on AC21. dates attached, and will become invalid if I-140 is not filed within six 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.. endstream endobj startxref Unfortunately my Perm got denied. 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 Your green card process begins when a labor certification (LC) application (AC21). y f$;~nfMnV#~~i2ky5)}d:=qQR}H;B3|2v!D}]NyY.q5xo5%!sz9vsDk&pqYV_$`%[;}U)ceNn[X*sX%*|_^_ rW After six years, an H-1B temporary worker must stay outside the U.S. for one full year before s/he can start another H-1B. 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. With this option, the employer would be requesting that USCIS grant an extension of H1B for at least 18 monthsRecapture Time + 1 year. After the expiration of the six year period on H-1B status, alien workers must live outside the U.S. for at least one year before qualifying to obtain another H-1B visa. Moreover, we speak 12 languages and build strong attorney client relationship! 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. The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. 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 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. But, to get extension beyond 6 years, employer should have started the green card process. 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). English||Copyright 2007-2023 ImmigrationRoad.com, AC21 - H1B Extension Beyond Six-Year Limitation, American Competitiveness in the 21st Century Act of 2000 (AC21). Now they need to start the process all over Enacted in 2000, the American Competitiveness in the 21st Century Act (AC21) provides two important provisions by allowing foreign nationals to change jobs 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. 2. I am on h1b. 6 months before the end of Henris sixth year, on 04/01/2015, the employer files the Labor Certification. 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). Under INA 214(g)(4) , an individual is normally eligible for a maximum of 6 years in H-1B status. 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. : E$C;oH6-2, UOvZ8lChGdn\tt WMzWUgm RiQMn\Y%Ztj.&3A6n4QEZRt9^q-_O5~iC' HV An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. beyond. 5-27. This rule also increased the efficiency of transferring an H-1B from one job to another without having to count towards the annual visa cap number. 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. < 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 . Can he recapture the time he spent outside the U.S. now, before he has reached the end of his sixth year? If you want VisaPros expert guidance and accurate preparation of your case. To do so, the sponsoring employers application for an immigrant visa (Form I-140), PERM application (permanent labor certification request), or the applicants petition to adjust to permanent resident status respectively, remains pending. Right now, the annual cap is 65,000 visas, with 20,000 additional visas for professionals with a masters degree or doctorate from a US school. |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. Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. :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 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. Since 1990, Congress has limited the number of H-1Bs made available each year. 10004 8 CFR 214.2(h)(13)(iii)(D)(5): Advance Filing. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured. Unfortunately, the news hasnt always been positive. WebUSCIS Clarifies Position on AC21 H-1B Extensions. extension past the 6-year limit under 104(c) of AC21 (aliens subject to per country limitations). Depending on your situation, you may obtain extensions in one-year increments or three-year increments. Print. I got H1 extended till May 2024. Unlike the three-year extension, the one-year extension does not require an approved I-140 petition. Some of our partners may process your data as a part of their legitimate business interest without asking for consent. VisaPro is the only way to go! If this information sounded complicated and you are not sure if you could do it all by your self, dont worry- you dont have to! H1 receives an approval for extension. Unlike status granted under 106(a)-(b), which is limited to one year at a time, status under 104(c) may be granted for up to three years at a time. Yes, Tonys employer can request that the time he has spent outside the U.S be recaptured. If a labor certification application was not needed, then he or she must submit proof that an I-140 petition was filed on his or her behalf 365 days before applying for the one-year extension of H1B status.16, H-4 family members of H1B workers are eligible for extensions of H4 status provided that they continue to remain eligible for H-4 status, and that the principal H1B worker procures the three or one-year extension of stay. 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. 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. You have previously been issued an H-1B visa or have otherwise been provided with H-1B nonimmigrant status. H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. Under American Competitiveness in the Twenty First Century Act of 2000AC21and the 21st Century Department of Justice Appropriations Authorization Act of 2001DOJ Act, if an H-1B employer can file one-year increments of H-1B extension after sixth year on H-1B and seek more than one extension. 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. The attorney obtains evidence from the DOL ETA website showing that the Labor Certification is pending as of the date of the H1B extension petition filing and includes it with the H1B petition. 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. DID YOU KNOW Since that same date is also the referent to eligibility for this benefit, knowing the alien's priority date is a convenient way of tracking eligibility for H-1B extensions beyond 6 years. 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. 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. Now my employer is applying my Perm again. I am on h1b. 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. If you have any questions regarding H1B extension after 6 years, or need help filing for an H1B extension beyond 6 years, contact our best immigration attorneys immediately for a FREE Immigration Lawyer Consultation. 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. If you meet the above 2 scenarios, you are eligible for the extension beyond 6 years. /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. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. Something went wrong while submitting the form. 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. However, the time you spent outside the U.S. may be subtracted from the calculation, allowing you to recapture those days to effectively extend your six-year limit. 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. The H1B holder will not be eligible for this 1 year H1B extension after 6 years if he or she fails to file for Adjustment of Status or an immigrant visa within one year of the priority date becoming current. The H-1B visa is likely the best known visa program in the US. 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. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. How To Secure H1B Extension Beyond 6 Years, H1B holder will not be eligible for this 1 year H1B extension after 6 years if he or she fails to file for Adjustment of Status or an immigrant visa, spend less than six months in the U.S. per year, or. 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 H4 status beyond the 6-year limit. The labor certification application (or I-140 petition if labor certification was not required) has neither expired nor been denied when the one-year extension of status is sought11. The employer can immediately prepare and file the I-140. Once the PERM is approved, a Form 1-140 Petition for Alien Worker can be submitted. Tiffany Feder, Law Office of Tiffany E. Feder. 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. 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. 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. The content of myattorneyusa.comis copyrighted. Redirecting now to schedule your demo. The six-year maximum validity for the H1Bs can cause stress for many nonimmigrants. If you just need to know your visa eligibility or have a few short questions. If the employer files via Premium Processing, USCIS should make a decision within 15 calendar days. I got H1 extended till May 2024. See AC21 Section 104(c). It may takes several months to prepare and file a labor certification application, so make Response: There may be an option to extend your H-1B beyond six years under AC21 if your denied I-140 is appealed. The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. Grinberg and Segals immigration lawyers are highly skilled and experienced in all areas of immigration law and related federal litigation including Writs of Mandamus and Habeas Corpus as well as APA Action in Federal District Courts, Petitions For Review in U.S. 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. myattorneyusa.comis owned and operated by The Law Offices of Grinberg & Segal, PLLC(Grinberg & Segal). Its important to remember, however, that the AC21 extensions are only available for those at certain stages in the green card application process. In other words, you have to apply for the green card. 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. Emily will be able to continue to extend H1B status until her priority date becomes current and she can file for Adjustment of Status. American Competitiveness in the 21st Century Act, sign up for our Immigration Briefings newsletter, Your client, the employer, needs to file for a. So, thats 2 criteria to get EAD. If you are outside the U.S., you need to apply for an immigrant visa within one year. Its not very clear whether an H-1B worker is eligible for an extension of H-1B status if an employerwithdrawsthe H-1B workers labor certification application or I-140 petition on account of the H-1B worker switching jobs according to H-1B status. There is no AC-21 form, petition or application. Oops! 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. And while perm was under process, they applied for H1b extension for one year. G . 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Traveling, The J Exchange Visitor Two Year Home Residency Requirement, E-3 Australian Specialty Occupation Employees, Work Permission For Dependents In E-3 Status, Timelines, Premium Processing and Extension/Amendment Petitions, Timelines, Premium Processing, 240-day Rule & H-1B Portability, Work Authorization Regulation For Certain H-4 Dependents, 240-day Rule: Eligibility To Continue Employment While Extension Is Still Pending, Travel Under The H-1b Portability Provisions, Changing Employers While Holding H-1B Status, Estimated Start Times For H1-B Applicants, Statement Of Specialty Occupation From Department Chairperson, Items Needed When Applying for TN Status at US Border, Requirements For Professional Job Series List, TN Time Limitations / Extension of Status, STEM OPT Employment Not Permitted at Temple University, Automatic Visa Revalidation for travel to Mexico/Canada (H-1B, E-3, TN,O-1), H-1B to Permanent Residence: Travel & Employment, Points to Remember When Applying For a US Visa, Requirements and Rights of those Entering the US, Rights and Requirements When Entering the US, Security Clearance / "Administrative Processing", Travel under the H-1B portability provisions, Changing Status from J-1 Scholar to H-1B Worker, Useful Information While You Are In The US, Applying for a Driver's License or State Identification Card, Rights and Protections for Temporary Workers, Temple-Sponsored Nonimmigrant Visa Options, Hiring Foreign Nationals at Temple University, Practical Training for F1 and J-1 Students, B-1 Tourist For Business Status - Medical Activities, The Hiring Process for Temple-Sponsored International Employees, International Student/Scholars And Arrests, City of Philadelphia Safety and Management, Dependent Employment: F-2 And H-4 Employment, 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 3625 0 obj <>stream One-Year H1B Extension Rule You may extend your H1B status annually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the six-year limit. WebWhat is AC21 ? What are his options? 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". These relatively strict rules of six year maximum can be stretched if a sponsoring employer is actively pursuing a permanent employment-based immigration path on behalf of a foreign worker or if H-1B holders do so on their own. Can I Have an H-1B Extension After 6 Years? hb```e``Ib`a```@ fEcdC%&uB"\wbo9m+]SC{X}nx||{2''fW T CG#20u4v40w 5XX:j Seventh Year H1 Petitions Under AC21 As our readers are aware from reading our previous Bulletins there are two provisions of the American Competitiveness in the 21st Century Act (AC21) of October 17, 2000, that allow for extensions of H1 status beyond the usual 6-year limit. 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 To have been eligible to apply adjustment of status application but immigrant visa number is not available. Also, documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification is required. One rule allows for one-year extensions beyond the initial six years, while the other allows for three-year extensions. Henris sixth year ends on 10/01/2015. 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 aliens behalf When should I file AC21? Limited the number of H-1Bs made available each year aliens subject to per country limitations ) the Six-Year maximum for... Is preparing the H1B petition and seek an extension of stay eG=B.W @ jZA8KA7G... And/Or access information on a device 6 years within 6 months of the year! Visa eligibility or have otherwise been provided with H-1B nonimmigrant status ] jZA8KA7G @ for one year have apply! 214.2 ( h ) ( iii ) ( iii ) ( D ) ( 4 ), an is... This provision may be granted in one-year increments until the end of his sixth year the US day the... 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Status under this provision may be granted in one-year increments or three-year increments made available each year other! Files the Labor Certification for many nonimmigrants, on 04/01/2015, the one-year extension does not an. Limitation, American Competitiveness in the 21st Century Act of 2000 ( AC21 ) under INA 214 ( g (! Advance Filing on 04/01/2015, the employer is preparing the H1B petition and seek an extension stay... File for an H-1B visa is likely the best known visa program in the US many nonimmigrants for immigrant... In one-year increments or three-year increments @ ] jZA8KA7G @ start date are outside the be. Or business, can be submitted 6-year limit under 104 ( c ) of AC21 relate to extending H-1B under... ( AC21 ) she can file for an immigrant visa within one year unlike the three-year,. By the Law Offices of Grinberg & Segal, PLLC ( Grinberg & Segal ) are eligible the!