Under INA 214(g)(4), an individual with H-1B status is allowed a maximum of six years of H-1B status within the United States. Once these years have expired, the H-1B worker is expected to have either obtained a green card, switched to another visa status, or departed the United States.
However, AC21 (American Competitiveness Act in the Twenty-First Century) and the USCIS 2005 memo introduce a new legal structure for extending this period under certain circumstances, particularly in relation to Employment-Based Green Card Applications (Especially non-NIW EB2 and EB3 Applications). Continue reading to learn how to extend your H-1B visa beyond 6 years under the AC21.
Understanding H-1B Visa Limitations and the Need for Extensions
As outlined above, the H-1B visa provides a maximum of six years of legal status in the US. Within this period, it is possible that the visa holder’s EB process may not be completed, preventing the visa holder from obtaining a green card through the EB process. This may create a need for an Extension beyond the 6-year limit.
What is the H-1B Visa Time Limit?
The H-1B visa is generally granted for an initial period of three years and can be extended for another three years, making the total maximum duration six years. However, extending this period is possible under certain circumstances. The maximum of six years includes the entirety of the time spent in the US under an H-1B status.
After reaching this time limit, the visa holder may switch to another visa category, leave the U.S. for at least one year before reapplying for a new H-1B visa, or obtain a green card to continue their stay and employment in the U.S.
What is AC21 and How Does it Help Extend H-1B Visas?
American Competitiveness in the 21st Century Act aka AC21 is a U.S. law enacted in 2000 that includes two important provisions allowing foreign nationals to change jobs before obtaining a green card and to extend their H-1B visa status beyond the six-year time limit. The provisions pertaining to extension of H-1B status are found under sections 104(c) and 106(a) of the American Competitiveness in the Twenty-First Century Act (AC21),
One-Year Extensions
If the beneficiary has filed a Form I-140 or a Labor Certification request at least 365 days before the requested H-1B extension start date; they are eligible for a one-year incremental H-1B extension beyond the six-year time limit. In other words, if the beneficiary has a pending Form I-140 or a Labor Certification request, the beneficiary is eligible for a 1-year H-1B extension; this also means that the beneficiary may apply for a 1-year extension without a Form I-140 approval.
Three-Year Extensions
The three-year extension may be considered if the beneficiary has an approved Form I-140 (Immigrant Petition for Alien Worker) but an immigrant visa number is not available.
In other words, the one-year extension is for the beneficiaries with pending applications (even without an I-140 approval), while the three-year extension is for the beneficiaries with an approved I-140 but unable to adjust status due to visa backlogs.
What are the Eligibility Requirements for H-1B Extension Beyond 6 Years Under AC21?
In order to be eligible for an H-1B extension beyond 6 years, the beneficiary must have at least a labor certification application pending. The preliminary requirement for applying for an H-1B extension beyond 6 years is applying for an Employment-Based Green Card. Employment-Based Application must be at least the Labor Certification stage, and at least 365 days must have passed since the filing of this application.
Please note that, for USCIS to grant an extension based on a pending I-140, the I-140 application must be filed by the Labor Certification’s deadline.
Section 104(c) of AC21: Permanent Residency in Process
AC21 Section 104(c) allows H-1B visa holders to extend their status in three-year increments beyond the six-year time limit if they have an approved I-140 petition, but are prevented from filing for adjustment of status due to visa number limits specific to their country. This provision allows H-1B workers to stay in the U.S. while they await the availability of their priority dates, supporting stability and continuity in their employment.
Section 106(a) and (b) of AC21: PERM or I-140 Pending for 365 Days or More
USCIS may grant a one-year extension under AC21 Section 106(a) if:
- The labor certification or I-140 petition was filed at least 365 days before the beneficiary’s six-year H-1B limit,
- The extension and I-129 petition meet all other requirements.
Section 106(b) of AC21 allows for extensions in increments of one year until USCIS reaches a final decision on the adjustment of status application.
When is an AC-21 H-1B Extension Beyond the 6-year Limit Unavailable?
Under AC21, beneficiaries with H-1B status can extend their status beyond the standard six-year limit under specific conditions. However, certain situations can prevent these extensions :
If neither a PERM labor certification nor an I-140 immigrant petition has been filed on behalf of the beneficiary at least 365 days before the end of the sixth year of their status, the beneficiary is not eligible for a one-year extension under AC21Section 106(a).
An approved I-140 petition is essential for a three-year extension under AC21 Section 104(c). If the beneficiary’s I-140 is denied or revoked, the beneficiary cannot apply for an extension beyond the six-year time limit. The same applies to labor certification applications as the labor certification is denied or expires without a timely I-140 filing, the beneficiary cannot benefit from AC21 extensions.
For three-year extensions under AC21 Section 104(c), if the beneficiary’s priority date becomes current, they are expected to file for adjustment of status. Failure to do so within one year of visa availability may disqualify them from further H-1B extensions under this provision.
Status violations like unauthorized employment or failure to maintain H-1B status may lead to the disqualification of the beneficiary from obtaining extensions under AC21.
What are the Steps to Apply for an H-1B Extension Beyond 6 Years AC21?
In order to apply for an H-1B extension beyond the six-year time limit under AC21, a series of steps must be followed to ensure the extension application meets all eligibility requirements and includes the necessary documentation.
Step 1: Determining the Eligibility
First, we must confirm that the H-1B holder qualifies for an extension under AC21. This eligibility is separated into two sections:
AC21 Section 104(c): This allows the beneficiary with a three-year extension if the beneficiary has an approved I-140 but cannot adjust status due to visa backlogs OR
AC21 Section 106(a): This provides a one-year extension if the beneficiary’s Labor Certification or I-140 petition has been pending for at least 365 days before reaching the six-year limit.
Determining the beneficiary’s eligibility is crucial since it determines the type and time duration of the extension the beneficiary may qualify for under AC21.
Step 2: Gathering Necessary Documents
The documentation required for the extension varies depending on whether the extension falls under AC21 Section 104(c) (three-year extension) or AC21 Section 106(a) (one-year extension),
- Labor Certification Application (If applicable):
Under AC21 Section 106(a), the Labor Certification Application or Form I-140 petition must have been filed at least 365 days before the H-1B visa expiration for the employee to qualify for a one-year extension beyond six years. Also, we wanted to clarify that in EB-2 (non-NIW) and EB-3 applications Form I-140 cannot be filed without an approved PERM Labor Certification.
For H-1B extensions under AC21, it is important to explain the points below:
- A Labor Certification application is necessary if the Employment-Based Green Card category requires a PERM Labor Certification. For example, in most EB-2 (non-NIW) and EB-3 cases, Form I-140 cannot be filed without an approved PERM Labor Certification (Form 9089).
- To qualify for a one-year extension beyond the six-year limit under AC21 Section 106(a):, the Labor Certification application (if applicable) or the I-140 petition must have been filed at least 365 days before the H-1B visa expiration. It is crucial to provide documentation proving the filing date of the Labor Certification or I-140 petition to meet this requirement.
- Additionally, if the Employment-Based Green Card category requires a PERM Labor Certification, the filing date of the Labor Certification becomes critical, as it determines the priority date for filing an adjustment of status application. This priority date is used to evaluate eligibility with the Visa Bulletin. Even if the beneficiary has an approved Form I-140 and is seeking a three-year extension under AC21 Section 104(c), they may be unable to file an adjustment of status application due to country caps. In such cases, the filing date listed on the Labor Certification serves as the reference point to evaluate when the priority date becomes current.
- Form I-140
Form I-140 must be approved to be eligible for a three-year extension under AC21 Section 104(c). The Form I-140 approval shows that the beneficiary meets the qualifications for a specific employment-based green card category.
- Other Supporting Documents
The Supporting Documents may vary depending on the nature of the beneficiary’s position at the sponsoring company or the qualifications of the beneficiary. The supporting documents can be;
- Current and Previous H-1B Approval Notices (Form I-797),
- Employment Verification Letter,
- Recent Pay Stubs and W-2 Forms from your ongoing employment,
- Proof of Employment-Based Green Card Process;
- Approval notice for the beneficiary’s Form I-140 application when requesting an extension under Section 104(c),
- Receipt notice for the beneficiary’s Form I-140 application when requesting an extension under Section 106(a),
- Confirmation e-mail for the beneficiary’s Labor Certification application when requesting an extension under Section 106(a),
Step 3: Filing the Form I-129
Upon determination of the type of the extension request, Form I-129 can be filed on behalf of the beneficiary, outlining the basis for the extension under the appropriate AC21 provision. The petition will include detailed supporting documents, such as the submitted or certified PERM application, an I-140 approval notice, or a receipt notice for the Form I-140, along with other supporting documents. This documentation serves to show eligibility for a one-year or three-year extension beyond the six-year H-1B limit, depending on the AC21 criteria.
Key Considerations for a Successful H-1B Extension Beyond 6 Years with AC21
As explained in detail above, the primary condition for applying for an H-1B extension beyond 6 years with AC21 is either having a pending I-140 or a Labor Certification application or having an approved I-140 Application but cannot apply for adjustment of status due to prevention by the per-country or worldwide cap on employment-based immigrant visas. There are a few points that make a successful H-1B extension beyond six years under an AC21 application.
Timing Your PERM and I-140 Applications
Timing your PERM and I-140 filings is crucial to ensure eligibility for H-1B extensions beyond the six-year limit under AC21 provisions.
As detailed above; one-year extensions beyond the 6-year time limit; require a pending Labor Certification Application or I-140 petition for at least 365 days before the end of the beneficiary’s sixth year in H-1B status.
Timing the PERM – Labor Certification Application
In order to have a smooth Labor Certification process, it is highly important to start early for the PERM Application, waiting for the beneficiary’s H-1B status’ expiry date will mostly result in the denial of the beneficiary’s H-1B extension.
The Labor Certification application must be filed, at the very latest, towards the end of the beneficiary’s fourth year of H-1B status or the beginning of their fifth year in their H-1B status. As the PERM process involves time-consuming steps such as recruitment, and prior filings with the Department of Labor. Keep in mind that processing times can vary due to high case volumes or backlogs, early filing provides a buffer to address potential delays. Also, starting early allows time to deal with any other unforeseen issues such as Department Of Labor rejections or audits, all might require re-filing or additional preparation.
Timing the I-140 Application
Filing the I-140 promptly is highly important, as its pending or approved status is the key element for H-1B extensions beyond the six-year time limit. Using premium processing may be considered to expedite decisions within 15 days, especially when time is limited.
Employer’s Role in the Extension Process
The employer plays a pivotal role in H-1B extensions beyond the six-year limit. As part of the extension application under AC21, the employer has to show their intent to keep the beneficiary beyond six years. This can be done by filing the PERM application and/or I-140 petition, both of these applications confirm a long-term or permanent job offer from the employer. Additionally, when applying for the H-1B extension, the employer must also provide documents to demonstrate the job will continue under the agreed terms and wage.
What are the Risks and Challenges of the H-1B Extension Process with AC21?
The H-1B extension beyond the six-year time limit process under AC21 provisions comes with several risks and challenges,
The following issues could lead to failing the requirement of “filing at least 365 days before the H-1B status” deadline, which would likely result in the denial of the extension application.
- PERM applications and I-140 petitions can face delays due to high volumes of applications or audits, potentially affecting the timely filing of H-1B extensions.
- The Department of Labor may audit the PERM application, or USCIS may issue Requests for Evidence or deny the I-140 petition if there are discrepancies in job details, wages, or qualifications. Therefore it is highly crucial for a beneficiary to start their PERM Application process well before reaching the end of their six-year H-1B time limit.
- In PERM Applications and I-140 petitions, discrepancies when describing job duties and employers’ inability to demonstrate financial sufficiency to pay the beneficiary the proffered wage in the I-140 phase may lead to denials in applications.
What are Alternatives if Your H-1B Extension is Denied?
If a beneficiary’s H-1B extension beyond the six-year time limit application had been denied, there are a few options available.
- Changing to Another Visa Status: The beneficiary may explore switching to a different visa category according to their eligibility.
- Leaving and Applying again for another H-1B: If a beneficiary would spend at least one year outside the U.S., the H-1B six-year time limit would reset and they can reapply under the H-1B lottery, if applicable.
Work with Oguz Law’s Immigration Lawyers For Your H-1B Visa Extension
Oguz Law provides comprehensive support for individuals or employers seeking H-1B extensions under AC21 provisions by offering the following services:
- Strategic Planning for Your Extension Application and Consultation: We analyze the beneficiary’s current immigration status, timeline, and eligibility under AC21 provisions to create a customized strategy for your H-1B extension.
- PERM and I-140 Application Assistance: Our Business Immigration team assists with preparing and filing accurate and timely PERM applications including prevailing wage determinations, and I-140 petitions, ensuring compliance with all requirements and minimizing risks of delays or denials.
- Documentation and Compliance Support: We guide employers and beneficiaries in gathering the necessary documentation to support successful filings.
- Handling Audits and RFEs: If the Department of Labor audits the PERM application or USCIS issues a Request for Evidence on the I-140 or H-1B extension application, we offer expert help and clear responses to resolve the issues quickly.
Our proactive and client-centered approach ensures a smoother H-1B extension process, keeping our clients on track and well-informed throughout their immigration journeys. Contact us today!
Need assistance? Feel free to reach out to us.
Frequently Asked Questions About H-1B Extension Beyond 6 Years AC21
Does the AC21 Apply Only to H-1B Extensions?
AC21 includes provisions beyond H-1B visa extensions. True, it notably allows H-1B holders to extend their status beyond the six-year limit under certain conditions, AC21 also includes measures affecting different aspects of U.S. immigration law such as Job Portability and H-1B Cap Exemptions.
Does AC21 Cover Family Members on H-4 Visas?
H-1B dependent family members’ time in H-4 status is generally limited to the duration of the main H-1B holder’s status. If the beneficiary obtains H-1B extensions beyond 6 years, then their H-4 dependent family members are also eligible for extension of H-4 status for that same duration. It is important to note that time spent in H-4 status does not count towards the 6-year maximum for H-1B status, so an individual who has spent 6 years in H-4 status may still obtain their own H-1B status for 6 years.
Is There a Limit to How Many Times I Can Apply for H-1B Extensions Under AC21?
AC21, there is no specified limit to the number of times a beneficiary can apply for H-1B extensions beyond the standard six-year time limit. However, it is important to note that each extension application must meet the eligibility requirements.
Is Premium Processing Available for H-1B Extensions Filed Under AC21?
Yes. Premium processing is available for H-1B extensions filed under the AC21.
What is the Difference Between 1-Year and 3-Year H-1B Extensions Under AC21?
As explained in detail above;
One-Year Extensions: Beneficiaries are eligible for one-year H-1B extensions beyond the six-year limit if a Form I-140 or Labor Certification request was filed at least 365 days before the requested H-1B extension start date. This applies even if the I-140 and Labor Certification have not yet been approved. In other words, a beneficiary can apply for a one-year extension if they have filed an I-140 application or a Labor Certification application, and these applications have been pending for over 365 days.
Three-Year Extensions: Beneficiaries with an approved I-140 application may qualify for three-year H-1B extensions if they are unable to apply for an adjustment of status due to per-country or worldwide caps on employment-based immigrant visas.
Can I File a 7th-year H-1B Extension with a Pending Labor Certification Application?
If the beneficiary’s Labor Certification application or Form I-140 application has been pending for more than 365 days, the beneficiary is eligible to file for a 7th-year H-1B extension, allowing them to maintain their work authorization while awaiting the outcomes of the Employment Based Green Card application.
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