Immigration Law

H-1B Visa Extensions Beyond Six Years Under AC21 - The Statutes

By admin

In the upcoming days and weeks, I’ll be posting information about H-1B extensions beyond the general 6-year limit aka 7th year H-1B extensions. These types of H-1B extensions can be extremely complicated and fact specific. But the information should help provide a solid foundation.

It’s always best to start with the statutes. Under the American Competitiveness in the Twenty-First Century Act (AC21), H-1B extensions beyond the sixth year can be valid for either 1 year or 3 years.

Statute for 3-Year H-1B Extension Under AC21 -

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

Statute for 1-Year H-1B Extension Under AC21 -

Sec. 106(a). 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.

Conclusion

The statutes are a great starting point. But you need the regulations and other guidance from USCIS to really understand H-1B extensions beyond the 6 years. Regulations, guidance, and come of my own insight to follow.

Full post as published by The Visa Bulletin on December 31, 2007 (boomark / email).