The H-1B visa, which allows a foreign worker to temporarily work in the United States in a specialty occupation, is generally limited to a maximum of six years. However, there are several ways to extend H-1B status beyond the six-year limit.
As an H-1B worker, you enter the country for a 3-year period, and then you can extend your H-1B status for another 3 years. But how can we stay in H-1B status beyond the initial six-year period? Enter the AC21!
AC21 stands for the “American Competitiveness in the 21st Century Act,” which was a bill passed by the U.S. Congress in 2000. Some of the key provisions in the AC21 include the ability for H-1B workers to extend their stay in the United States beyond the six-year limit on H-1B visas.
How can an H-1B worker extend their H-1B status beyond the six-year period? Certain criteria must be met.
Extending your H-1B beyond six years, Option A:
The AC21 law allows for extensions of H-1B status for those who have an approved I-140 Employment-Based (EB) immigrant visa petition under the EB-1, EB-2, or EB-3 preference categories, and are unable to immigrate due to per-country quotas published by the Department of State. This basically means that the case is approved, but there is no green card number for the year in which the I-140 was approved (visa numbers are limited), so the beneficiary must wait in a backlog.
In a case where an approved I-140 exist, the H-1B can be extended 3 years at a time, indefinitely, until such time that a visa number is available, and the beneficiary can finally apply for their green card.
Extending your H-1B beyond six years, Option B:
If the I-140 has not yet been approved. You can obtain one-year extensions as long as 365 days or more have passed since the filing of either a labor certification application (PERM) or an immigrant visa petition (I-140). These extensions can be granted indefinitely until a decision is made on the pending application. This means that an application must be pending and requires careful planning.
Additionally, once the labor certification application is approved, the employer must file the immigrant visa petition within six months to preserve eligibility for future extensions. Once the immigrant visa petition is approved, the H-1B worker can extend their status for an additional three years (see Option A) until they can immigrate, as long as a visa number is not yet available to them via the visa bulletin published by the Department of State.
The H-1B extension under AC-21 can be applied for no earlier than six months before the expiration of the current status as indicated on your I-94 record.
Let’s look at relevant language in the USCIS Adjudicator’s Field Manual:
(A) Conditions for the Granting of an H 1B Extension of Stay Under Section 106(a) of AC21.
Assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year if evidence is provided that:
A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
The labor certification was filed with DOL or the Form I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to section 214(g)(4) of the INA; and
The extension and the I-129 petition are otherwise approvable.
An extension of stay under section 106(a) of AC21 should not be granted if, at the time the extension request is filed, the labor certification has expired by virtue of not having been timely filed in support of an EB immigrant petition during its validity period, as specified by DOL.
USCIS will grant an extension of stay to such H 1B nonimmigrants in one-year increments until a final decision is made to:
(i) Deny the application for labor certification;
(ii) If the labor certification is approved, to revoke the approved labor certification;
(iii) Deny the EB immigrant petition; or
(iv) Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
A decision to certify, deny or revoke an application for labor certification is made by one of the Department of Labor’s certifying officers.
. . .
(10) Requests for an Extension of H 1B Status under the Provisions of Section 104(c) of AC21 §104(c) for Aliens Subject to per Country Visa Limitations. [Updated May 28, 2008]
USCIS interprets section 104(c) of AC21 as only applicable when an alien, who is the beneficiary of an approved Form I 140 petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations. Any petitioner seeking an H 1B extension on behalf of an H 1B alien beneficiary pursuant to section 104(c) of AC21 must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per
country immigrant visa limitations.
USCIS will accept a copy of the H 1B alien beneficiary’s Form I 140 petition approval notice which shows that an immigrant visa is not immediately available to him or her based on the approved petition’s priority date as evidence of the H 1B alien beneficiary’s eligibility for an extension of H 1B status under the provisions of section 104(c) of AC21 .
Adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of the filing of the Form I 129 petition in which a request for a section 104(c) of AC21 H 1B extension request is made.
If the H 1B alien beneficiary is shown to be ineligible to be granted lawful permanent resident status because of the per country visa limitations, then the H 1B extension request under the provisions of section 104(c) of AC21 may be granted for a maximum of three year increments, until such time as the alien’s application for adjustment of status has been processed and a decision made thereupon.USCIS Adjudicators Field Manual – 1/17/2023
We will work diligently to take all the complexity and stress out of your H-1B extension. Contact us to consult with an immigration attorney about your particular matter.
Remember that each case is different. Prior results do not guarantee a similar outcome.