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. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. Under AC21 Section 106 (a), extensions beyond the six-year limit can be obtained in one REMEMBER 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. Emily will be able to continue to extend H1B status until her priority date becomes current and she can file for Adjustment of Status. ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). Approximately five months before his H1B expires, the employer inquires with the attorney regarding whether or not Rahul is eligible for an extension of H1B. Eligibility For Change Of Status Applying In The U.S. My 6 year limit ends on May 27 2022 My employer had applied for PERM. Another benefit of AC21 for H1B workers is that in case of "H1B transfer," 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. 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. 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for an extension of H1B status is unclear if the H1B worker's labor certification application or I-140 petition is withdrawn by an employer on account of the H1B worker switching jobs pursuant to H1B status.12 Although current practice suggests that an H1B worker in this situation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. WebAC21 Extension in Three Year Increments AC 21 106(c) An H1B visa holder who has an approved Form I-140 but in unable to file a Form I-485 due to per country limitations (priority date is not current according to the Visa Bulletin), H1B visa extensions may be granted in three year increments. If you are outside the U.S., you need to apply for an immigrant visa within one year. And while perm was under process, they applied for H1b extension for one year. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. Henri can leave the U.S. before his H1B expires (or change to another applicable nonimmigrant status, e.g. Unfortunately my Perm got denied. Luckily theres a way to stay in H-1B visa status beyond the initial six years - the American Competitiveness in the 21st Century Act. Response: There may be an option to extend your H-1B beyond six years under AC21 if your denied I-140 is appealed. No. WebWith AC21, eligible H-1B workers can extend their stay beyond the six-year limit without having to leave the United States first. 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. All rights reserved. Call now and book your consultation with Richard Herman if you want to file an H-1B extension petition. 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." 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. 0 H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility. Once approve, Eduardo can come back to the U.S. and resume employment. Circuit Courts and all administrative appeals Before the Board of Immigration Appeals (BIA) of the Executive Office for Immigration Review; Administrative Appeals Office (AAO) at the U.S. Department of Homeland Security (DHS) as well as before ImmigrationCourtsnationwide. 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. 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. Your i140 is approved. HWr}W#ybfTQ+eE'b*_Pt6R Provided that the applicant was at the time of the approved I-140 petition ineligible to apply for adjustment of status, he or she will be granted a three-year extension of H1B status. As with the three-year extension, being in the United States is not a prerequisite to applying for a one-year extension of H1B status. 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. 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. 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. As long as your LC was filed more than 365 days before your completion Avvo has 97% of all lawyers in the US. 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. 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. See AC21 Section 106(a). Specifically, section 104(c) of AC21 authorized the extension of H-1B status beyond the statutory 6-year maximum for such individuals if immigrant visas are not immediately available to them because the relevant preference category is already over-subscribed for that foreign national's country of birth. Note that in this case, you need to leave the country and then return to recapture time on H-1B status, but this combination extension may not be for more than three years. The goal of this law is to give H-1B workers in the US legal options during their transition to becoming permanent residents. Of course, rules have exceptions and the 6-year limit on H1Bs is no different. endstream endobj startxref y f$;~nfMnV#~~i2ky5)}d:=qQR}H;B3|2v!D}]NyY.q5xo5%!sz9vsDk&pqYV_$`%[;}U)ceNn[X*sX%*|_^_ rW Tony is in the U.S. in H1B status. Workers in the United States on nonimmigrant H1B status are limited to a maximum stay of six years in the United States on H1B status. As long as you remain eligible, you may extend your H1B status unlimited times until green card approval/denial. Transfer Your SEVIS record from Temple University, Reinstatement vs Traveling to Regain Status, Study while on Optional Practical Training, Travel While On Optional Practical Training, F-1 internships with an International Organization. WebOn December 30, 2017, McClatchy DC Bureau reported that the Trump Administration was considering a draft memorandum that would reinterpret the language of AC21 [see category] to stop granting extensions of stay beyond the 6-year limit for H1B visa-holders with pending immigrant visa petitions. Ask us immigration, deportation or immigration appeals questions online with our convenient Ask a Questionform. 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. < 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 . The attorney informs the employer that Rahul is eligible for a 1 year H1B extension beyond 6 years based on the fact that the Labor Certification will have been filed at least 365 days before June 1, 2017, the beginning validity date of Rahuls 7th year. 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. immigrant visa number is not available to you, you may apply for three-year extensions of your H-1B status. Yes, you may extend your H-1B visa beyond the 6-year limit. 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 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. WebWho is Eligible for H1B Extension Using AC21? Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. Country caps combined with high demand for green cards has led to incredible wait times. 1184(g)(4)), any alien who Be otherwise eligible for adjustment of status from H1B worker to employment-based visa in one of the first three preference categories but for the per-country or worldwide cap on employment-based immigrant visas, or, Three provisions of AC21 relate to extending H-1B status beyond six years (6) years. H1B VISAS FOR EMPLOYERS This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. Webalien to request an H-1B extension beyond the 6-year limit? The staff has been very helpful in answering my questions right away. Oops! H1B Extension beyond 6 years and AC21 Rule. If your case does not fall in either of above cases, you will only get extension for the balance period remaining in your total 6 year H1B quota. Unlike the three-year extension, the one-year extension does not require an approved I-140 petition. The six-year maximum validity for the H1Bs can cause stress for many nonimmigrants. 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. Your green card process begins when a labor certification (LC) application 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. 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