Versus Travel And Reentry. 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. 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. 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.. I got H1 extended till May 2024. 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. H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. %%EOF Visa Overstay And Illegal Presence In The U.S. However, the only requirement of 365 day is not that straightforward for applicants who begin their adjustment of status process within 365 days of their H-1B visa expiration. 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. Labor certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. 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. 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. 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). You Under USCIS regulations, any time spent outside the U.S. does not count toward the maximum period of H1B stay in the U.S. Time spent outside the U.S. can be recaptured and H1B extension after 6 years is permissible as long as the Beneficiary can submit documentary proof of the trips outside the U.S. In order for an H-1B non-immigrant to receive an extension of stay 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. It's everything I'd wished for in an immigration forms software. I filed I-485 on 02/21/2019, and I filed H1b extension on 04/25/2019. 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. Henri can leave the U.S. before his H1B expires (or change to another applicable nonimmigrant status, e.g. 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. 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. is filed on your behalf. 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. 2. No. 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. Now my employer is applying my Perm again. Clients (and my staff) love how "user friendly" this software is. 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.. Specialty occupations include jobs in fields such as science, technology, engineering, and mathematics. 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. 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. If at any time before or after the filing of the extension request one of the above occurs, the H-1B alien beneficiary of the extension request will not be entitled to an WebExtending H1B Status Beyond the 6 Year Statutory Limit. 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. Partial days spent in the U.S. count against the six years. The goal of this law is to give H-1B workers in the US legal options during their transition to becoming permanent residents. For certain H-1B1 applicants from Chile and Singapore, the visa is only available in one-year increments, and it can be renewed each year. 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. New York, NY. 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. dates attached, and will become invalid if I-140 is not filed within six 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. Her first H1B approval notice was dated October 1, 2010 to September 30, 2013. 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. I am on h1b. 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. Or, if your I-140 has already been approved but your priority date is not current, i.e. The three-year extension is not a prerequisite to applying for a one-year extension of H-1B status. DHS has confirmed that the petition must be approved in order to benefit from AC21 104(c) extensions. Foreign nationals in the U.S. under H1B status must be aware that the H1B comes with a six-year maximum validity. Transfer Your SEVIS record to Temple University. 8 CFR 214.2(h)(13)(iii)(D)(5): Advance Filing. What are Henris options? WebThe only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition. 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. Manage Settings Using Docketwise, has caused me to give up paper questionnaires and keeps me from inputting information directly into forms., I am extremely pleased with Docketwise. The interface is very user friendly and intuitive. (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs. As a general principle, days spent outside of the United States during the validity period of an H-1B petition will not be counted toward the 6-year maximum period of stay in the United States in H-1B status. If you just need to know your visa eligibility or have a few short questions. If you have an immigration issue or unclear about your visa options. 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. Under the current statutory interpretation, an applicant doesnt have to be currently on H-1B status or in the U.S. to be eligible for the three-year extension of H-1B status. See AC21 Section 106(a). The staff has been very helpful in answering my questions right away. endstream endobj startxref To have been eligible to apply adjustment of status application but immigrant visa number is not available. 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. It is important to note that only full days spent outside the U.S. will be counted for recapture. 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. they can start working for the new employer upon filing of the new After such period, you can apply for additional three years, making it a six-year maximum, but in increments of no more than three years at any one time. 2023 Docketwise, Corp. All Rights Reserved. Foreign nationals in H1B status who work in the U.S. You can apply for 3 year H1B extension. 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. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 petition. One common way is to recapture time spent abroad by the H-1B visa holder during their six years. The H-1B visa is likely the best known visa program in the US. Your i140 is approved. Country caps combined with high demand for green cards has led to incredible wait times. In other words, you have to apply for the green card. Luckily theres a way to stay in H-1B visa status beyond the initial six years - the American Competitiveness in the 21st Century Act. 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. He is in H1B status and his status expires on 5/31/2017 (the end of his 6th year). A foreign national in the United States on H-1B nonimmigrant status is limited to a maximum stay of six years. Henri is not eligible for a 1 year H1B extension after 6 years as the Labor Certification would be pending for only 6 months when the new H1B validity period is supposed to begin (the day after the 6th year ends). If you are outside the U.S., you need to apply for an immigrant visa within one year. Hi, I am on my 6 years of H1b visa, which expired 05/1/2019. 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. 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. WebTo extend your H1B beyond 6 years, you must have a pending Employment Based Green Card process. 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. 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. 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 the third wave experiment unethical, Three-Year extension is not current, i.e high demand for green cards led... Leave the U.S. before his H1B expires ( or change to another applicable status. 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