My previous post, Is My Potential Employee Cap-Exempt?, explains the six-year limitation for an employee working under H-1B and the concept of recapturing unused time. This is a follow-up to explain the options that may be available for those H-1B employees that are approaching the end of their six years or have exhausted their six years.
American Competitiveness in the 21st Century Act of 2000 (AC21) has two important implications for H-1B employees: (1) a "one-time" protection for H-1B employees by extending their H-1B visa in 3 year increments if the I-140 has been approved under section 104(c), and (2) one-year extensions are available if prior to the exhaustion of the beneficiary's H-1B time, the beneficiary's PERM application or the I-140 petition had been pending for more than 365 days under section 106(c).
Section 104(c): One-Time Protection
Section 104(c) allows the H-1B employee to obtain a "one-time" protection to extend their H-1B visa if their inadmissibility into the country was due only to the fact that they could not apply for adjustment of status because of the per country ceiling imposed by the Department of State. Once their I-140 is approved, this section allows the employees to obtain extensions of their H-1B in 3-year increments and work in the U.S. until their priority date on the visa bulletin is current for adjustment.
It is important to note that although Section 104(c) provides for a "one-time" protection, the petitioner may continuously apply to extend the H-1B status of the beneficiary so long as the two requirements are met. The requirements are merely that (1) the beneficiary has an approved I-140, and (2) the only reason the beneficiary cannot adjust status is because of the per country limitations provided in the visa bulletin.
Additionally, the usage of the word "extension" is a bit of a misnomer as the option is available for those H-1B beneficiaries with an expired H-1B visa also. It is more of a "renewal" of the old visa in increments of three years, until your priority date is current for you to adjust your status to obtain your green card. Moreover, this extension is available for beneficiaries regardless of whether you are outside the U.S. or not. Of course, if you are outside the U.S., you must bring the approved H-1B visa extension petition to the U.S. Consulate in your home country to be processed for your entrance back into the U.S.
Section 106(a): One-Year Extension
The second exception to the six-year limit provides for extensions in one year increments, if the PERM Labor Certification or the I-140 petition has been pending for more than 365 days. Like the "extension" under section 104(c) above, the petitioner may also file for the extension if the beneficiary is outside of the country awaiting adjudication. However, as the regulations state the Labor Certification or the I-140 petition "must have been filed at least 365 days prior to the date that the beneficiary will have exhausted the 6 years of H-1B status in the U.S.," this extension petition is almost always filed before the exhaustion of the 6 years limit, while the beneficiary is still in the U.S. working for the petitioner.
Some other requirements for the approval of the H-1B extension are that the labor certification is not expired at the time of filing for the extension and that, but fore the delay in the adjudication, the extension and the I-129 petition are otherwise approvable.
There are also strategies where you may be able to use recaptured time as outlined in Is My Potential Employee Cap-Exempt? to extend your H-1B expiration date to meet the requirement that the Labor Certification or the I-140 must have been filed 365 days prior to the exhaustion of your H1B.
If you believe that you may qualify for these extensions, please contact us to see what we can do for you.
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