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7th Year H-1B Extensions Under AC21 104(c) and 106(a) – Statutes and USCIS Guidance

January 16th, 2008 Leave a comment Go to comments

This article should help you understand the process for extending H-1B status beyond the standard sixth year (a “7th year extension”). I am constantly referring to both the statutes and guidance listed below.

H-1B status can be extended beyond the sixth year in either 1 year or 3 year increments. You can thank the American Competitiveness in the Twenty-first Century Act (AC21) for that. 7th Year H-1B extensions in 3 year increments = AC21 104(c). 7th Year H-1B extensions in 1year increments = AC21 106(a).

Here’s a quick table of contents to skip ahead.

1 Year H-1B Extension // AC21 106(a)

3 Year H-1B Extension // AC21 104(c)

I’ve cut passages from various USCIS memos that provide guidance on 7th year H-1B extensions under AC21 and pasted those passages directly below the statutes for quick reference.

1 Year H-1B Extension // Statute // AC21 106(a)

Sec. 106. Special Provisions in Cases of Lengthy Adjudications.

(a) Exemption From Limitation – The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since –

(1) the filing of a labor certification application on the alient’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
(2) the filing of the petition under such section 204(b).

(b) Extension of H-1B Worker Status – The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.


USCIS Guidance // Memos // AC21 106(a)

From Pearson Memo, June 2001:

E. AC21 106 — Special Provisions in Cases of Lengthy Adjudication

AC21 106 permits H-1B nonimmigrants to obtain an extension of H-1B status beyond the 6-year maximum period, when:

(a) the H-1B nonimmigrant is the beneficiary of an employment based (EB) immigrant petition or an application for adjustment of status; and
(b) 365 days or more have passed since the filing of a labor certification application, Form ETA 750, that is required for the alien to obtain status as an EB immigrant, or 365 days or more have passed since the filing of the EB immigrant petition.

The Attorney General is required to grant the extension of stay of such H-1B nonimmigrants in 1-year increments, until a final decision is made on the H-1B nonimmigrant’s lawful permanent residence.

1. Procedures for Obtaining Extension of Status in Cases of Lengthy Adjudication

In order for an H-1B nonimmigrant to receive an extension of stay under AC21 106 beyond the maximum 6-year limit, a petitioner must file a Form I-129 on behalf of the nonimmigrant beneficiary. The petitioner may be either the beneficiary’s current employer or a new employer. If the H-1B petition is approved, the petition will be valid for a period of 1 year. One-year extensions of the beneficiary’s H-1B status may continue until a final decision is made on the alien’s lawful permanent resident status. A petitioner is required to file a new Form I-129 and pay the $110 [now $320] filing fee for the request for a 1-year extension of status under AC21 106. Existing guidelines in the instructions to the Form I-129W for payment of the $1,000 [now $1,500] H-1B Nonimmigrant Petitioner Account Fee shall be followed. For example, if the petitioner is a nonprofit research organization or the petition is a second or subsequent request for extension of stay filed by that petitioner on behalf of that beneficiary, the petitioner is exempt from payment of the $1,000 [now $1,500] H-1B Nonimmigrant Petitioner Account Fee.

The status of a dependent of an H-1B nonimmigrant is derivative of and linked to the status of the principal H-1B nonimmigrant. Therefore, dependents are eligible for H-4 status upon the filing of an H- 1B petition on behalf of the principal alien, and the filing of a Form I-539 with filing fee and all necessary supporting documentation for the dependent. Dependents should be advised to file the Form I-539 concurrently, whenever possible, with the H- 1B petition filed on behalf of the principal H-1B nonimmigrant.


From Aytes Memo, May/November 2005:

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-yearmaximum 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.

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 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.


3 Year Extension // Statute // AC21 104(c)

Sec. 104(c) One-Time Protection Under Per Country Ceiling.

Nothwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 USC 1184(g)(4)), any alien who–

  1. is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
  2. is eligible to be granted that status but for application of the per country limitation applicable to immigrants under those paragraphs may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made theron.

may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien’s application for adjustment of status has been processed and a decision is made theron.


USCIS Guidance // Memos // AC21 104(c)

From Pearson Memo, June 2001:

The AC21 104(c) enables H-1B nonimmigrants with approved I-140 petitions who are unable to adjust status because of per-country limits to be eligible to extend their H-1B nonimmigrant status until their application for adjustment of status has been adjudicated. An H-1B nonimmigrant is eligible for this benefit even if he or she has exhausted the maximum 6-year period of authorized stay for H-1B nonimmigrants under 8 U.S.C. 1184(g)(4), INA 214(g)(4). The statute states that the beneficiary must:

(a) have a petition filed on his or her behalf for a preference status under INA 203(b)(1), (2), or (3) (an employment based (“EB”) petition); and (b) be eligible to be granted that status except for the per-country limitations.

Any H-1B nonimmigrant who meets the statutory requirements above may be approved as the beneficiary of a request for an extension of H-1B nonimmigrant status until a decision is made on the nonimmigrant’s application for adjustment of status.

1. Procedure for processing “one-time protection” benefits

In order for a nonimmigrant to obtain an extension of H-1B nonimmigrant status under AC21 104(c), a petitioner must file a Form I- 129, Petition for Nonimmigrant Worker, with the appropriate signature, fees, and supporting documentation on behalf of the nonimmigrant. Existing guidelines in the instructions to the Form I-129W, “H-1B Data Collection and Filing Fee Exemption” for payment of the $1,000 H-1B Nonimmigrant Petitioner Account Fee shall be followed. For example, if the petitioner is a nonprofit research organization or the petition is a second or subsequent request for extension of stay filed by that petitioner on behalf of that beneficiary, the petitioner is exempt from payment of the $1,000 H-1B Nonimmigrant Petitioner Account Fee. If the petition and request for extension of stay are otherwise approvable, adjudicating officers shall not deny a petition because the nonimmigrant has exhausted the maximum 6-year limit provided for by INA 214(g)(4). Extensions of stay under AC21 104(c) shall be made in increments of three years.

The status of a dependent of an H-1B nonimmigrant is derivative of and linked to the status of the principal H-1B nonimmigrant. Therefore, dependents are eligible for H-4 status upon the filing of an H-1B petition on behalf of the principal alien and the filing of a Form I-539, Application to Extend/Change Nonimmigrant Status with filing fee and all necessary supporting documentation for the dependent. Dependents should be advised to file the Form I-539 concurrently, whenever possible, with the H-1B petition filed on behalf of the principal H-1B nonimmigrant.


From Aytes Memo, May/November 2005:

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.


That’s it! If you can help me improve the information above or have any questions, get in touch.

Categories: 7th Year H-1B Extensions Tags:
  1. Swapnil
    January 24th, 2008 at 18:52 | #1

    Question on H1B extension:
    Does the extension beyond 6yr limit apply to a person who has already filed I485 based on approved I140?
    I hear suggestions to keep on H1B in case I485 land into trouble somehow. So this question. Although a followup question would be, would such an extended (beyond 6th yr) H1B (if can be done) provide a real safety net in case I485 get’s denied?

  2. January 28th, 2008 at 16:19 | #2

    @Swapnil: The H-1B extension can be applied for beyond the six year limit even though the I-485 has been filed and the I-140 is approved.

    Under AC21 106(a), H-1B status can be extended “until such time as a final decision is made on the alien’s lawful permanent residence.”

    And yes, it’s almost always advisable to keep the H-1B status until the I-485 is approved and the Green Card is received.

  3. Asmita
    February 14th, 2008 at 00:32 | #3

    Thank you for the great article! With your expertise could you please answer if it is possible to do the following.

    Employer A (1-140 approved) — switch to—> Employer B (extend 3 years) — switch to—> Employer C (is it possible to extend another 3 yrs since I-140 is approved from A)

    This is assuming that the I-140 is not revoked and that the dates for my country are still backlogged.

    Thanks for your time!

  4. February 21st, 2008 at 07:39 | #4

    Hi, Asmita. So long as you are eligible to adjust your status but for per country limitations, an extension will be granted. I think the answer to your question is yes, but I’m not familiar enough with your case to comment directly.

  5. K.J.
    March 5th, 2008 at 16:41 | #5

    What happens if Labor is less than 365 days but is approved? does this qualify for extention using that labor?

  6. M Shin
    March 16th, 2008 at 02:35 | #6

    What happens if Labor was filed in the 6th year of H1B, does this qualify for extension using that labor and please advice on I140′s processing time if possible.

  7. March 16th, 2008 at 15:04 | #7

    @KJ: No. Labor must have been pending 365 days and/or I-140 must be approved.

    @M Shin: No, it must be filed before the start of the sixth year. But if you have been outside the US at all while you were in H-1B status, you might be able to extend H-1B status by recapturing time spent outside the US. And if there is enough time to recapture, you might be able to push that labor certification filing date more than 365 days before the expiration of H-1B status, making you eligible for a new H-1B extension beyond the sixth year based on the labor certification filing. The I-140 processing times can be found here.

  8. subhash
    September 8th, 2008 at 20:31 | #8

    my i 140 denied but my h1b visa exp 2008 oct
    can i get more 3 years ext. this is my 1st ext. i use my h1b obnly 3 years.

    dave

  9. Linda
    September 12th, 2008 at 21:44 | #9

    I am disappointed at the rate the F1 category is moving, I was really hoping that they would at least work on PD June,02 before this year was finished but I guess only God has to make that possible. Keep your fingers crossed guys! all things work together for good to those that love him and those that are called according to his purpose.

  10. Kyle L
    September 30th, 2008 at 14:01 | #10

    Dear John C. I have a question, I have one year left on my 6 year H1B and my current employer (B) went through a bankrupt and a new firm (C) is taking over my old firm and my H1B is being transferred.

    I have a I-140 approved from my previous employer (A) and my new employer (C) will start EB2 on my behalf. I assume that my I-140 from employer (A) has been revoked and I wonder if I can use the I-140 approval notice to extend my H1B beyond 6th year with Employer (C).

    Thanks!

  11. Shiva
    August 6th, 2010 at 17:57 | #11

    Hi John,

    My employer filed for my PERM on 9/2/2009 which was denied 3/30/2010 due to errors made by the employer in filing out the form and so we have appealed for a motion to reconsider. My H1 B visa expires on 9/9/2010. If i have to file for an extension based on the 365 day rule under the Yates Memo of 2005 (page 8) I can file it before the 365 day mark has passed. However I wanted to know what documentary evidence do I provide for the 7th year extension. As in the May 2008 memo by D Neufeld, it only says documentation from DOL.
    Thanks!

  12. NSKV
    November 9th, 2010 at 05:58 | #12

    Hi,

    I’m in the 6th year of H1B expiring on Nov 20,2010. My PERM was filed in October and approval received a couple of days ago. Meanwhile, I’ve applied for change of status to F1 from Nov 20 which has been approved. I’m still working on H1B and valid I-94 expiring on Nov 20. Now my employer is filing I-140 through premium processing. Will I have any problems with my I-140 as I had applied for change of status to F1 which got approved? If my I-140 is approved, am I eligible for 3 year extension on H1B?

  13. KVR
    November 12th, 2010 at 03:14 | #13

    @Kyle L
    Hi @Kyle L,

    I am on the same boat, my -140 was approved with Emp B and I working for Emp A since 5 years. Can I use that 140 copy to get my H1B extension from Emp A.

    Please let me know your suggestions.

  14. Erick
    April 12th, 2011 at 23:50 | #14

    Hi!
    I have a question regarding my status now. Last Oct. 9 my six year H1B was expired but my wife has a pending Perm application since 2008 because her application was audit. We file my beyong six year of H1b using my wife pending perm application but the INS denied my H1B extension and I have 30 days to appeal. Do I qualify to H4 under my wife current H1B status since I have given to appeal.
    Thank.

  15. VSD
    February 4th, 2012 at 17:23 | #15

    Hi,

    My current employer filed my I765/I485 on Feb 2, 2012.

    Date of first entry in us: May 10, 2006
    I140 approved: April, 2011
    H1B extn: May 9, 2013

    Question: If I get layoff prior to EAD approval and I485 approval, can I extend my H1B beyond May 2013 with new employer using I140 with my priority date being current? I read on some forums that once I485 is filed you cannot use I140 for H1 extn with another employer.

  16. Avi
    April 26th, 2012 at 21:41 | #16

    My Current Situation – Currently on H1B (8th year) Working for Company A for the past 6 years, they have filed my GC under EB3, priority date is Dec 2008. The same company A is filing another labor application under EB2, its currently under wage determination and will soon be filed. My 6 years on H1B got done in 2010, so filed an 3 year extension since my I-140 was approved. Now, my approved H1B ext will get expired on March 7th 2013….. and i recently received an excellent offer from Company B which is a high profile managerial position with huge salary hike. So the question is CAN I MOVE , should i make the H1B transfer? will there be any immigration issues? Please guide me!

  17. Mel
    August 6th, 2012 at 05:20 | #17

    Hi! My I 140 was approved and pending visa availability. My 6th yr will be in 2013. Does my employer need to file another Labor Certification in order to file another H1B petition for me beyond my sixth year? Thank you!

  1. January 18th, 2008 at 00:13 | #1