USCIS has released a May 12, memorandum interpreting a Yates notes that prior AC21 guidance memoranda remain in effect and the. Mr. Yates indicates that the proposed regulation may be more restrictive than the memo. The USCIS has not even issued proposed AC This issue is addressed in a USCIS memo discussed in our May 27, article, Yates May Memo on AC21 and Is, as well as our.

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Leave a Reply Cancel reply Your email address will not be published. Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute.

Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit.

Your email address will not be published. If you do not need LC, your process starts when your employer files I for you.

USCIS Memo On Remainder Time And Other H Time Determinations

In this section we will discuss the details of how H1B holders can take advantage of AC After six years, an H-1B temporary worker must stay outside the U. There is no AC form, petition or application.

Actually it is very important to remember that H4 yatess is not automatically extended when the primary H1 receives an approval for extension. But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I is not filed within six months of LC approval. He is a frequent speaker and writer on various immigration related topics.

American Competitiveness in the 21st Century Act AC21 provides two important provisions by allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit. AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum limit of six years while the permanent residency process has not yet been completed.

USCIS Memo On Remainder Time And Other H Time Determinations | NAFSA

Qc21 Neufeld Memo allows for additional mejo to acquire new H-1B employment and remain eligible to apply for change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the employer. Note that a person’s eligibility for 3-year extension beyond the 6th-year limit is based on visa number availability at the time of filing H1B petition, not on a later date when the extension is actually reviewed.


Review the pending I petition to meml if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within days. Post 6th-year H-1B extensions are filed the same way as regular H-1B Extensions, with the addition of evidence to support AC21 such as a pending labor certification application. The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo.

Another benefit of AC21 for H1B workers is that in case of “H1B transfer,” they can start working for the new employer upon filing of the new H1B petition, ywtes. This article highlights some of the important interpretive guidance in the Neufeld Memo, but also advises practitioners to advocate positions on behalf of their clients that have not been addressed in the Neufeld Memo. If it is discovered that a beneficiary has ported off of an unapproved I and I that has been pending for days or more, the following procedures should be applied: Under that provision, so long as a labor certification was filed days prior the expiration of the H-1B sixth year, the H-1B status could be extended in one-year increments.

This provision can be relied upon even if the labor certification was filed within the days of the sixth year in H-1B status. If the H-1B alien beneficiary ceases to be in the employment of a cap-exempt employer, then he or she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary.

The Neufeld Memo emphasizes that the beneficiary must not have ceased to be employed by a cap-exempt employer in order to be eligible for a concurrent H-1B petition that is filed by cap-subject employer. In other words, while an alien is the beneficiary on an H-1B petition approved through a cap-exempt employer, he or she can also be the beneficiary of an H-1B petition filed concurrently through a non-exempt employer. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U.


Labor certifications that are approved on or after July 16, are valid for calendar days. So if an approved labor certification wasn’t used in an I petition within days, it would no longer be able to support an H1B post 6th-year extension.

USCIS Interim Guidance On Processing Benefits Under AC21

If a request for additional evidence RFE is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. Your six-year total includes all the time you held H1B’s for all employers you worked for, as well as any time you were in H4 status. When a response is received, and if the petition is approvable, following the procedures in part A above.

Or, if your I has already been approved but your priority date is not current, i. Can an alien exercise portability after the adjustment of status application has been af21 for more than days but the I petition either remains unadjudicated or has been denied? Your green card process begins when a labor certification LC application is filed on your behalf. H-1B visa status is valid for a maximum of six years: Can a spouse seek an H-1B extension beyond yattes years when the other spouse is the beneficiary of a timely filed labor certification?

So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status. In any event, the need to make such an argument will be obviated if the USCIS re-institutes premium processing for I petitions, thereby allowing for swifter approvals.

This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to.