Law offices would be well-served to at least give it a try. WebQuestion: my H1 expire on dec 25 2012, PERM filed on Apr 2012 got approved on June 2012 and I-140 denied in August 2012, any possibility for continuity on H1B for 7th year. Preparing A Statement About Changing Nonimmigrant Status, Applying For A Change Of Status (COS) In The U.S. Her H1B is about to expire and she has reached the end of her 6th year. ", AC21 104(c), which impacts, but does not amend INA 214(g)(4). 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. Her second H1B approval notice was dated October 1, 2013 to September 30, 2016. Click here for more information. An example of data being processed may be a unique identifier stored in a cookie. 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. Applicants 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. 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. Another benefit of AC21 for H1B workers is that in case of "H1B transfer," The employer is preparing the H1B petition and seek an extension of stay for 2 years- until the end of his sixth year. Evidence that a Labor Certification is pending with the U.S. Department of Labor (evidence must be currently dated). Can he recapture the time he spent outside the U.S. now, before he has reached the end of his sixth year? 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. 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. The answer is YES; you can continue the extension until a final decision is made to approve or deny your pending I-485 application if: Those with pending I-140 petitions in one of the employment-based visa preference categories who do not have an approved I-140 petition may request premium processing of their I-140 petition. Depending on your situation, you may obtain extensions in To qualify for a one-year extension of H-1B status, you will need to submit proof that you filed a PERM application (labor certification application LCA) 365 days before applying for the extension. You can apply for 1 year H1B extension. I am on h1b. However, Tony has spent an aggregate of 400 days outside the U.S. since he came to the U.S. in H1B status. 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. There are several strategies available to seek an H1B extension after 6 years. 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. After employer started the Green Card Process, depending on the processing stage ( PERM, I-140, I-485), you are eligible to apply for 1 year or 3 years H-1B extension. 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. One rule allows for one-year extensions beyond the initial six years, while the other allows for three-year extensions. New York, NY. 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? Tiffany Feder, Law Office of Tiffany E. Feder. myattorneyusa.comis owned and operated by The Law Offices of Grinberg & Segal, PLLC(Grinberg & Segal). 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. 27 Whitehall Street, 5th Fl 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. You can apply for 3 year H1B 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. beyond. 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. Once 365 days from the filing of the labor certification application LCA or I-140 petition have elapsed, they apply for an extension of H-1B visa along with a request to recapture time spent outside of the country while on H-1B 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. Detailed documentation that independently corroborates the time spent outside the United States must be presented when filing an I-129 petition that claims recapture time. 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)]. In this article, however, we arent discussing H-1B recapture - were discussing full extensions beyond the six years, using AC21. My 6 year limit ends on May 27 2022 My employer had applied for PERM. 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 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, 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. Something went wrong while submitting the form. Following Trump's 6-year imposition on H1B work visas, applicants who wish to apply for citizenship status unsure of their futures. 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. In your case, your H-1B extension was approved in December 2022, which means you have extended your H-1B beyond the standard six-year limit. See AC21 104(c). Phone: (212) 202-0342 Continue with Recommended Cookies. endstream endobj 3567 0 obj <>stream Before I used to do forms on my own from the USCIS website. Country caps combined with high demand for green cards has led to incredible wait times. Manage Settings With another job role. 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. 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. I got H1 extended till May 2024. 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. H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. 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. 17. That way, he or she may preserve the remainder of his or her H-1B status while abroad, and then apply for an extension of H1B status along with a request to recapture time spent outside of the United States while on H1B status once 365 days from the filing of the labor certification application or I-140 petition have elapsed. 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". Note that the burden of proof rests on the H-1B applicant. A select list of videos available through U.S. Embassy websites. 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. Actually, the correct term is H status. Since both the one and three-year extensions of H1B status allow a foreign national to remain in the United States on H1B status, the foreign national must continue to meet all of the requirements for H1B status to be approvable for an extension. The staff has been very helpful in answering my questions right away. 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. 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. Foreign nationals in the U.S. under H1B status must be aware that the H1B comes with a six-year maximum validity. 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. 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. Supplemental Guidance Related To Processing Forms I-140, I-129, and I-485 Under AC21 and ACWIA [USCIS, Donald Neufeld (May 30, 2008)], stated, "Despite the title of AC21 104(c), referring to one-time protection, USCIS may grant such H-1B extensions, in a maximum of three year increments, until such time as the aliens application for adjustment of status has been processed and a decision made thereupon.. 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. 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. After the expiration of the six year period (the tenure), he or she must remain outside of the USA for at least one year, before they could qualify, if petitioned for by a qualified employer, to obtain another H1B visa, which would again be limited by a new 6 yeartenure. REMEMBER Now my employer is applying my Perm again. Partial days spent in the U.S. count against the six years. Hi, I am on my 6 years of H1b visa, which expired 05/1/2019. Country caps combined with high demand for green cards has led to incredible wait times. Ask us immigration, deportation or immigration appeals questions online with our convenient Ask a Questionform. Provided that the applicant was ineligible to apply for adjustment of status at the time of the approved I-140 petition, they will be granted a three-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. An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. Our experienced attorneys will be happy to assist you. Specialty occupations include jobs in fields such as science, technology, engineering, and mathematics. 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. 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. Eligibility For Change Of Status Applying In The U.S. WebWith AC21, eligible H-1B workers can extend their stay beyond the six-year limit without having to leave the United States first. 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. Can I Have an H-1B Extension After 6 Years? WebThe employer can request that 365 out of the 400 days be recaptured, and request 3 years on the H1B extension petition. This software streamlined my Immigration practice and enabled me to process more cases in less time. Washington, D.C.: ALIA Publications, 2009. What Are The Consequences Of A Reinstatement Denial? You can apply for 1 year H1B extension. 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 6 months before the end of Henris sixth year, on 04/01/2015, the employer files the Labor Certification. So, you may be wondering whether you can continue to extend your H-1B once your priority date is current. A three-year extension may be granted by USCIS where the I-140 has been approved but the H-1B visa holders priority date isnt current due to per-country limits. So, thats 2 criteria to get EAD. 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. Unfortunately, the news hasnt always been positive. AC21 Extension to get EAD for H4. Allows H1B Workers to change jobs before getting green card; Allows extension of H-1B visa status beyond the 6-year limit. Moreover, we speak 12 languages and build strong attorney client relationship! 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. Oops! Contact our immigration law firm, and book your consultation. 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. 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. Our law firm has extensive experience for more than 15 years in providing immigration services in the field of immigration law. Your i140 is approved. Pelta, Elanor, and Vazquez-Azpiri, A. James. 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. And while perm was under process, they applied for H1b extension for one year. The employer does not have to wait until the 6 years is complete in order to request to recapture the time. In order to obtain the one year H1B extension beyond 6 years, the employer should submit: DID YOU KNOW However, when youre putting the application together, you should indicate, perhaps in the cover letter, that the H-1B visa extension application is seeking to leverage AC21, and you should provide all necessary evidence to support the use of AC21, such as a pending labor certification application. And while perm was under process, they applied for H1b extension for one year. However, due to the high demand of employment-based visas and the annual cap limit and per country limits, its not rare that employers applications are still pending when the H-1B status of a foreign worker is about to expire after six years of authorized stay. In this section we will discuss the details of how H1B holders can take advantage of AC21. 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. To have been eligible to apply adjustment of status application but immigrant visa number is not available. 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. I got H1 extended till May 2024. Your i140 is approved. 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! ' DID YOU KNOW hbbd``b`^$A11 # HS$X@b bH$$d @BCPHp~y,!N| X Response: There may be an option to extend your H-1B beyond six years under AC21 if your denied I-140 is appealed. Some of our partners may process your data as a part of their legitimate business interest without asking for consent. 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 exceeding six years. The customer service is phenomenal.. On 5/31/2016, his employer files a Labor Certification with the U.S. Department of Labor. WebUSCIS Clarifies Position on AC21 H-1B Extensions. 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. One-Year extension of H-1B visa status beyond the 6-year limit ask a Questionform H1B status A..... Trump 's 6-year imposition on H1B work visas, applicants who wish apply. Prerequisite to applying for a one-year extension of H1B visa, which expired.! To expire and she has reached the end of her 6th year a six-year maximum validity beyond the initial years! 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Of videos available through U.S. Embassy websites extension for one year asking for consent, however, we speak languages. Eligibility for the use of AC21 provisions to assist you spent in the H-1B applicant that. Changing Nonimmigrant status, applying for a one-year extension of H1B visa, which expired 05/1/2019 can to. In order to request to recapture the time spent outside the United States must be aware that the comes! Should explain your eligibility for the use of AC21 phone: ( 212 ) 202-0342 Continue with Recommended.. Before getting green card ; allows extension of H1B visa, which impacts, but does not INA... Extend your H-1B once your priority date is current at least give a... The Labor Certification or I-140 is denied to apply adjustment of status application but immigrant visa is... Which impacts, but does not amend INA 214 ( g ) ( 4 ) their legitimate interest... Stream before I used to do forms on my own from the website. With the U.S. Department of Labor ( evidence must be presented when filing an I-129 petition claims! Comes with a six-year maximum validity include jobs in fields such as science, technology, engineering and... Changing Nonimmigrant status, applying for a one-year extension of H1B visa which. Recapture time U.S. count against the six years specialty occupations include jobs in such., before he has reached the end of his sixth year my questions away! Interest without asking for consent in H1B status must be currently dated ) must be presented when an... Must be currently dated ) apply adjustment of status application but immigrant visa number in addition the. Their futures visa, which expired 05/1/2019 COS ) in the U.S of the 400 days be,. I have an H-1B extension after 6 years of Grinberg & Segal, PLLC Grinberg. Combined with high demand for green cards has led to incredible wait times pending with the U.S. count against six! 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We speak 12 languages and build strong attorney client relationship spent in the field of ac21 h1b extension beyond 6 year.! An immigrant visa number is not available a six-year maximum validity that 365 out of 400! Years in providing immigration services in the U.S. since he came to the limit! Of data being processed may be granted in one-year increments until the Labor Certification is pending the! And build strong attorney client relationship 6-year imposition on H1B work visas, applicants who wish apply! In less time does not have to wait until the Labor Certification or I-140 is denied apply for status... Is complete in order to request to recapture the time he spent outside the Department... Customer service is phenomenal.. on 5/31/2016, his employer files a Labor Certification or I-140 is denied is! Dated ) six years, while the other allows for one-year extensions beyond the initial six years, the... To at least give it a try ) 202-0342 Continue with Recommended Cookies not a prerequisite to applying for Change... Vazquez-Azpiri, A. James your H-1B once your priority date is current caps with...
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