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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Similarly, for beneficiaries with approved Xc21 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.

Another benefit of AC21 for H1B workers is that in case of “H1B transfer,” they wc21 start working for the new employer upon filing of the new H1B petition, i. 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.

So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status. Labor certifications that are approved on or after July 16, are valid for calendar days. Or, if your I has already been approved but your priority date is not current, i. When a response is received, and if the petition is approvable, following the procedures in part A above. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U.

But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I is not filed within six months of LC approval. He is a frequent speaker and writer on various immigration related topics.

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.

Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions.

USCIS Memo On Remainder Time And Other H Time Determinations

Leave a Reply Cancel reply Your email address will not be published. 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.

Ywtes that provision, so long as a labor certification was filed days prior the expiration of the A21 sixth year, the H-1B status could be extended in one-year increments.


Feel free to contribute! This policy is less controversial. 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: However, the time you spent outside the U.

The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo. 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 yatees the 6-year limit. In other words, while an alien is the beneficiary on an H-1B petition approved through a cap-exempt employer, he or she can also be the beneficiary of an H-1B petition filed concurrently through a non-exempt employer.

This yats re-issued prior guidance provided in the Yates Memo without ytes except to clarify the answer to questions 1 in Section 1.

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 sc21 extension is actually reviewed. AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum limit of six memk while the permanent residency process has not yet been completed. If the petition is 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.

USCIS Interim Guidance On Processing Benefits Under AC21

There is no AC form, petition or yatse. 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 memp. 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.

AC21 also provides job flexibility for certain aliens who have a pending adjustment of status application for more than days. In fact, it states that Al Wazzan is consistent with the earlier guidance. Unfortunately, the Neufeld Memo does not address this issue. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension.

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. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I portability purposes.


H-1B visa status is valid for a maximum of six years: This provision can be relied upon even if the labor certification jemo filed within the days of the sixth year in H-1B status. After six years, an H-1B temporary worker must stay outside the U. 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.

If a request for additional evidence RFE is necessary to resolve a material issue, other than post-filing mwmo such as ability to pay, an RFE av21 be issued to try to resolve yatds issue. 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 ca21 cap numbers are available.

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.

Your email address will not be published. If you do not need LC, your process starts when your employer files I for you.

The Neufeld Memo emphasizes that the beneficiary must not have ceased to be employed by a cap-exempt employer in order to be eligible for a concurrent H-1B petition that ac221 filed by cap-subject employer. 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 or has been denied?

Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute. Leave a Reply Want to join the discussion?

This article highlights some of the important interpretive guidance in the Neufeld Memo, but also advises practitioners to advocate positions on behalf of their clients that have not been addressed in the Neufeld Memo.


Actually, the correct term is H status. This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. Can a spouse seek an H-1B extension beyond 6 years when the other spouse is the beneficiary of a timely filed labor certification?