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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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.

USCIS Interim Guidance On Processing Benefits Under AC21

The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo. If the petition kemo approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. If the USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.

Labor certifications that are approved on or after July 16, are valid for calendar days.

Immigration: AC21 and H1B Extension Beyond Six-Year Limitation

After six years, an H-1B temporary worker must stay outside the U. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U. Your green card process begins when a labor certification LC application is filed on your behalf. 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. This policy is less controversial.

It remains to be seen whether the Nebraska and Texas Service Centers, which have sole jurisdiction over I petitions, will be amenable to follow the Yates Memo policy and allow beneficiaries who have ported to be able to respond to a request for evidence on an I petition so as to facilitate its approval.


Your email address will not be published. H-1B visa status is valid for a maximum of six years: In fact, it states that Al Wazzan is consistent with the earlier guidance. Or, if your I has already been approved but your priority date is not current, i.

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.

Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. 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

This provision can be relied upon even if the labor certification was filed within the days of the sixth year in H-1B status. 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.

This memorandum re-issued prior guidance provided in the Yates Memo without change except to clarify the answer to questions 1 in Section 1. The Neufeld Memo allows for additional time to acquire new H-1B employment and remain eligible kemo apply for change of status yatess extension of stay notwithstanding the termination of employment or other retaliatory action by the employer.

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.

When a response is received, and if the petition is approvable, following the procedures in part A above. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I portability purposes.

Feel free to contribute! So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status.

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, i. 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.

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. Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit. Review the pending I petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within days.


Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute. 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: Similarly, for beneficiaries with approved I petitions, USCIS will grant H1B extensions – in a maximum of 3-year increments – until a final decision is made with regard to their I applications.

Although the Yates Memo suggested that an alien can port off an unadjudicated I, it impliedly concluded that porting could occur only if the I was approved but provided a mechanism for that approval even though the alien was no longer with the employer who had filed the I petition.

As long as your LC was filed more than days before your completion of six years in H status, you are eligible for 7th-year-extension and beyond.

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

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. Leave a Reply Want to join the discussion? However, the time you spent outside the U. He is a frequent speaker and writer on various immigration related topics. Can an alien exercise portability after the adjustment of status application has been pending for more than days but the I petition either remains unadjudicated acc21 has been denied?