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. So it is recommended that H4 Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. I have tried other Visa services, but VisaPro is the best by far. 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. Section 104 (c) states that DHS may grant a three-year H-1B extension beyond the six-year maximum if the H-1B worker has (i) an approved employment-based immigrant visa petition (I-140 petition), and (ii) is eligible for lawful permanent resident status, but is unable to attain that status immediately due to per country limits on visa DHS has confirmed that the petition must be approved in order to benefit from AC21 104(c) extensions. hZo8>C4iXpEDm%qx;Rm21-R"E'R4P"Q1&p$@"&G@X"Hz LPTDXc$aJ1n8k L8&\(%\R#\i"SfavGH: Is the H1b extension beyond six years with approved I-140 only possible because of AC21 act? In order for an H-1B non-immigrant to receive an extension of stay endstream endobj 3567 0 obj <>stream See AC21 Section 104(c). Find the best ones near you. WebWith AC21, eligible H-1B workers can extend their stay beyond the six-year limit without having to leave the United States first. The status must be renewed if the applicant remains eligible. The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number. That reading would limit this benefit only to those experiencing unavailability of a visa number arising from the "per country" limitations, which are separate from the overall numerical restrictions in an employment-based category. A 2008 USCIS memo clarified, however, that both "per country limitations" and "worldwide" unavailability of visa number unavailability can serve as the basis for a 104(c) extension. Recently, H-1Bs are back in the news as more than 100,000 employment-based green cards are set to expire soon. 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. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. 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.. Since coming to the U.S., she has spent an additional 100 days outside the U.S. How much time can Karlas employer recapture? Specialty occupations include jobs in fields such as science, technology, engineering, and mathematics. So, thats 2 criteria to get EAD. Copyright 2023, Temple University. 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. ALIA's FocusSer. 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 Emily will be able to continue to extend H1B status until her priority date becomes current and she can file for Adjustment of Status. 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. If all requirements are met, USCIS will grant H1B post 6th-year extension in 1-year increments unless a final decision is made to: Similarly, for beneficiaries with approved I-140 petitions, USCIS will grant H1B extensions - in a maximum of 3-year increments - until a final decision is made with regard to their I-485 applications. H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility. Dependents of H1B nonimmigrants are also eligible for extending their To have been eligible to apply adjustment of status application but immigrant visa number is not available. myattorneyusa.comis owned and operated by The Law Offices of Grinberg & Segal, PLLC(Grinberg & Segal). 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. It is wise to consult with an experienced immigration lawyer and assess your particular situation in this situation. What are Henris options? After pending for 5 months, the application is chosen for Audit by the DOL, to which the employer responds. In such cases, the applicant may be advised by an immigration practitioner to leave the United States prior to the expiration of his or her H1B status. Actually, the correct term is H status. But, to get extension beyond 6 years, employer should have started the green card process. This is often possible even after the He is approaching the end of his fourth year in H1B and his H1B is expiring shortly. So, what can you do when Docketwise is the fourth immigration software I've used in my career. 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. 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 First, a high-level overview of the green card process: One-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 the H-1B workers behalf, or 365 days or more have passed since filing the I-140 petition. 2. The new job offer may be through the same employer that filed the petition or a different employer. On 07/25/2019, I received an RFE stating that I'm not eligible for extension due to "lengthy adjudication delay exemption". *cBWE c2_#&+hv7VbgcRV9.|reoU$SDTv9 WH]+*qq8"eU{ In general, only H-1B visa holders whose employers have started the green card process for them may be eligible to extend their H-1B visa beyond the six years. Karlas employer can recapture all the time she has not been in the U.S. since the beginning of her H1B validity dates- including the dates from October 1, 2010 to her entry into the U.S. on April 1, 2011, which is approximately 181 days. I filed I-485 on 02/21/2019, and I filed H1b extension on 04/25/2019. If you have an immigration issue or unclear about your visa options. This week, USCIS clarified that it is not considering changing its interpretation of the H-1B extension of status provisions offered in the American Competitiveness in the Twenty First Century Act (AC21). An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. I got H1 extended till May 2024. Individuals who deplete this 6-year limit are not eligible for another 6 years until they have resided and been physically present outside the United States for one year, at which time their eligibility for a new 6-year period of H-1B status "restarts." All rights reserved. Thus, the employer can recapture 281 days (181 + 100) and seek H1B extension beyond 6 years. If you meet the above 2 scenarios, you are eligible for the extension beyond 6 years. Unfortunately my Perm got denied. immigrant visa number is not available to you, you may apply for three-year extensions of your H-1B status. 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). beyond. hb```e``Ib`a```@ fEcdC%&uB"\wbo9m+]SC{X}nx||{2''fW T CG#20u4v40w 5XX:j REMEMBER Her second H1B approval notice was dated October 1, 2013 to September 30, 2016. In this article, however, we arent discussing H-1B recapture - were discussing full extensions beyond the six years, using AC21. Manage Settings The questionnaires are excellent, the system is easy to use, and overall this just saves a huge amount of time. Also, documentation that an I-140 petition was filed on their behalf within 180 days of the labor certification is required. 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. Country caps combined with high demand for green cards has led to incredible wait times. In order to make a determination as to the H-1B alien beneficiary's eligibility for an extension of H-1B status under the provisions of 104(c) of AC21, USCIS adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of filing of the Form I-129 petition. 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. DID YOU KNOW The new employer could file an H1B extension for an eligible individual, and the H1B could be used to work on the new job. No. The consent submitted will only be used for data processing originating from this website. The H-1B visa is likely the best known visa program in the US. This software streamlined my Immigration practice and enabled me to process more cases in less time. He also exhausted all of his recapture time. Our fee is only $49 per up to 15 min or $160 per up to 45 minutes for all consultations regardless of thetopic. 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. This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. English||Copyright 2007-2023 ImmigrationRoad.com, AC21 - H1B Extension Beyond Six-Year Limitation, American Competitiveness in the 21st Century Act of 2000 (AC21). Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. Lets examine these strategies here. 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. Under sections 104 and 106 of the American Competitiveness in the 21st Century Act ( AC21), it is possible to obtain H-1B status beyond the six-year limit for the following individuals: An application for extension of stay under the AC21 provisions will, like a regular application for extension of stay, benefit from the "240-day rule". The American Competitiveness in the Twenty First Century Act of 2000 (AC21) law allows H1B extensi KNH October 10, 2018, 2:32pm #3. An H-1B visa may offer a path to permanent residency, at which point the visa holder no longer needs an employment based visa and is not tied to a sponsoring employer. 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 staff has been very helpful in answering my questions right away. 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. 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. Unfortunately, the news hasnt always been positive. So, if you are an H-1B visa holder with pending adjustment of status applications to specific employment-based visa categories who want to obtain a one-year extension of stay under H-1B status, check whether you meet the following requirements: If a labor certification is not required, you must submit the evidence that you filed an I-140 petition 365 days before applying for the one-year extension of H-1B status. Immigration Services Throughout the United States, Document Review Skype Consultation (One Hour), At Herman Legal Group, Your Future Matters Most, Copyright 2017 - 2022|Herman Legal Group, LLC. I am on h1b. Continue with Recommended Cookies. 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. He was forced to leave the U.S. because he had reached his six-year limit and the employer had not filed a Labor Certification in time for him to be eligible for a 1-year H1B extension after 6 years. Eligibility For Change Of Status Applying In The U.S. 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. Ask us immigration, deportation or immigration appeals questions online with our convenient Ask a Questionform. The six-year maximum validity for the H1Bs can cause stress for many nonimmigrants. You can apply for 1 year H1B extension. /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. 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. Yes, Tonys employer can request that the time he has spent outside the U.S be recaptured. vUO?6P2%/RZx/(0"CJ5=m1~?JTG,JGh!Ev6l%f3#fp@D`t| p$2~? 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. Grinberg & Segals New York-based immigration, deportation and removal lawyers represent immigrant clients in all fifty states and before U.S. Consulates anywhere in the world. Operated by the Law Offices of Grinberg & Segal ) through the same employer filed... 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