AC21 - H1B Extension Beyond Six-Year Limitation
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. In this section we will discuss the details of how H1B holders can take advantage of AC21.
What is AC21 for H1B Extension
H-1B visa status is valid for a maximum of six years: maximum three-year at one time, but may be extended multiple times with the total not exceeding six years. After six years, an H-1B temporary worker must stay outside the U.S. for one full year before s/he can start another H-1B. With AC21 , eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U.S. first.
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.e. they don't have to wait for the approval notice of the second H1B petition.
Who is Eligible for H1B Extension Using AC21?
You may extend your H1B status annually in one-year increments if your green card process was started at least 365 days prior to the day when you reach the six-year limit. Or, if your I-140 has already been approved but your priority date is not current, i.e. immigrant visa number is not available to you, you may apply for three-year extensions of your H-1B status.
Your green card process begins when a labor certification (LC) application is filed on your behalf. If you do not need LC, your process starts when your employer files I-140 for you.
Do I Have to Have a Pending I-140 to Use AC21?
No. As long as your LC was filed more than 365 days before your completion of six years in H status, you are eligible for 7th-year-extension and beyond. But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I-140 is not filed within six months of LC approval.
How Many Times May I Use AC21 to Extend My H1B
As long as you remain eligible, you may extend your H1B status unlimited times until green card approval/denial. This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to.
What Count towards the Six Years in H-1B Status?
Actually, the correct term is H status. 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. However, the time you spent outside the U.S. may be subtracted from the calculation, allowing you to recapture those days to effectively extend your six-year limit.
What Are the Procedures for Using AC21
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.
Where can I find an AC-21 Form?
There is no AC-21 form, petition or application. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions.
Can Family Members in H4 Status Benefit from AC21?
Yes. Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension. So it is recommended that H4 dependents file I-539 concurrently with H1 extension applications, to avoid accidentally falling out of status.
When Will H1B Sixth-Year Extension Be Denied
If all requirements are met, USCIS will grant H1B post 6th-year extension in 1-year increments unless a final decision is made to:
- Deny the labor certification application;
- Revoke an approved labor certification;
- Deny the pending I-140 petition; or
- Grant or deny adjustment of status or application for an immigrant number.
Similarly, for beneficiaries with approved I-140 petitions, USCIS will grant H1B extensions - in a maximum of 3-year increments - until a final decision is made with regard to their I-485 applications.
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.
LC Validity and H1B Extension
Labor certifications that are approved on or after July 16, 2007 are valid for 180 calendar days. After LC approval, employers will have 180 days to submit the certification to USCIS in support of an I-140 petition. So if an approved labor certification wasn't used in an I-140 petition within 180 days, it would no longer be able to support an H1B post 6th-year extension.
Important USCIS or INS Guidance on AC21:
- AC21 Neufeld Memo - May 30, 2008
- AC21 Aytes Memo - December 27, 2005
- AC21 Yates Memo - May 12, 2005
- AC21 Yates Memo - August 04, 2003
- AC21 Cronin Memo - June 19, 2001
- American Competitiveness in the 21st Century Act of 2000 (AC21)
Copyright © ImmigrationRoad.com Last updated: 01/15/2012