If you missed part 1, please click here: http://topimmigrationnews.blogspot.com/2013/02/faq-ac21-portability-part-1.html
II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF
§106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT
Question 1. When an alien would otherwise be eligible for an H-1B extension, is it necessary
to first file a Form I-129 requesting an extension of time to allow the beneficiary to
complete or nearly complete the initial 6 years, and then file an additional Form I-129
requesting an extension of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the
6-year maximum period, when:
A. 365 days or more have passed since the filing of any application for labor certification, Form
ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year
maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only
be granted in one-year increments, but may be requested on a single (combined) extension request
for any remaining time left in the initial 6-year period. Requiring the filing of two extension petitions
merely increases petitioner and CIS workloads, and has no basis in statute. In no case, however,
may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR
214.2(h)(15)(ii)(B)(1).
Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner
must establish that the above criteria (see Question 1 outlining requirements under Section 106(a))
were or will be met either on or before the requested start date on the H-1B extension application.
Thus, an alien is eligible for an extension of H-1B status beyond the 6th year as long as either the
qualifying labor certification application or I-140 petition has or will have been pending for at least
365 days prior to the alien’s requested start date, regardless of whether the H-1B extension
application was filed prior to the passage of such period If the alien would no longer be in H-1B
status at the time that 365 days from the filing of the labor certification application or immigrant
petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be
granted.
Question 3. Are there cases where an alien, who has been granted an H-1B extension
beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum
period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant
the extension of stay request made under section 106(a) of AC21, in one-year increments, until such
time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the
EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
If at any time before or after the filing of the single (combined) extension request a final decision is
made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an
extension beyond the time remaining on his or her 6-year maximum stay unless another basis for
exceeding the maximum applies.
Question 4. In a labor substitution context, can both the original alien and the substituted
alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into
the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.
Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien
to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or
certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for
this purpose.
Question 6. Should service centers or district offices deny a request for an H-1B extension
beyond the 6-year limit where the labor certification was filed over 365 days ago, has
been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year
limit should not be denied on the sole basis that an I-140 petition has not yet been filed.
Question 7. Should service centers or district offices deny a request for an H-1B extension
beyond the 6-year limit where the labor certification or immigrant petition from an
employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days
ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be
from the same employer requesting the H-1B extension.
Question 8. Should service centers or district offices deny a request for an H-1B extension
beyond the 6-year limit where the labor certification or the immigrant petition was filed
over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than
adjust status?
Answer: No.
Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit
provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an
H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held
another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B
extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the
requirements independently of their H-1B spouse’s eligibility for a 7th year extension.
Question 10. What are the guidelines for processing 7th Year Extensions with the
implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.
III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION
UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST
THE H-1B 6-YEAR LIMIT
Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to
qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?
Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is
required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under
§ 104(c).
Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c),
may an extension be granted for a period of up to three years?
Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition
must request three years, and include a Labor Condition Application covering such period).
Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c),
may more than one extension be granted?
Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take
more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.
IV. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE H-1B PORTABILITY
PROVISIONS
Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from
one employer to another even after the alien’s I-94 or last approved petition has expired
as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B
employer even after the alien’s I-94 or last approved petition has expired. In order to port, however,
such alien must meet all the requirements of INA § 214(n), including the requirement that the new
petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has
previously determined and issued guidance explaining what constitutes a “period of stay authorized
by the Attorney General.” One example would be:
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B
status. Alien’s original petition, approved for Employer A, expires during the pendency of the
extension. Alien is then in a “period of stay as authorized by the Attorney General” while
Employer A’s extension is pending. Employer B then files new petition and alien wants to port to
Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a
“period of stay as authorized by the Attorney General.”
In other words, porting under INA §214 does not require that the alien currently be in H-1B status as
long as he or she is in a “period of stay authorized by the Attorney General.”
Question 2. Can there be successive H-1B portability petitions filed for an alien while the
previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the
requirements for H-1B classification and for an extension of stay.
Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s
nonimmigrant status expires while the H-1B portability petitions are pending and a
petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the
requirements for H-1B classification and for an extension of stay. In the event the alien’s
nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string
of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition
filed after the expiration of any approved status which will result in the denial of the successive
requests to extend or change status.
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