Scenario 1 (AC21 104(c))
The American Competitiveness in the Twenty-First Century Act (AC21) enables H-1B non-immigrants with approved I-140 petitions who are unable to file Adjustment of Status because of per-country limits, to be eligible to extend their H-1B non-immigrant status until their application for adjustment of status has been adjudicated (approved or denied). You can extend your H-1B status even beyond the maximum of 6 years of authorized stay, provided you have an employment based green card petition filed on your behalf in an either EB1, EB2, or EB3 categories, and you are not eligible to file your Adjustment of Status application only because you are from a country for which the priority date is not current, which is usually the case with applicants from India or China.
Please note that an H-1B extension given for the above listed reason would be made in increments of 3 years.
The status of a dependent of an H-1B non-immigrant is derivative of and linked to the status of the principal H-1B non-immigrant. Therefore, dependents are eligible for H-4 status upon 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 the filing fee and all necessary supporting documentation for the dependent. Dependents should be advised to file the Form I539 concurrently, whenever possible, with the H-1B petition filed on behalf of the principal H-1B non-immigrant.
Scenario 2 (AC21 106(a))
The American Competitiveness in the Twenty-First Century Act (AC21) permits H-1B non-immigrants to obtain an extension of H-1B status beyond the 6-year maximum period, when
- The H-1B non-immigrant is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of Status ; and
- 365 days or more have passed since the filing of a labor certification application, PERM, that is required for the alien to an get employment-based green card, or 365 days or more have passed since the filing of the EB immigrant petition (I-140).
H-1B non-immigrant in the above-mentioned scenario can get extensions of H-1B non-immigrant visa status in increments of 1 year at a time, until a final decision is made on the H-1B non-immigrant’s green card.
Under “21st Century Department of Justice Appropriations Authorization Act” (H.R. 2215), H-1B non-immigrant can extend H-1B 1 year at a time, even if their labor is not approved but pending for 1 year or more. It is not necessary that it should be approved.
Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.
In order for an H-1B non-immigrant to receive an extension of stay beyond the maximum 6-year limit, a petitioner must file a Form I-129 on behalf of the non-immigrant beneficiary. The petitioner may be either the beneficiary’s current employer or a new employer. Usual rules and fees of filing an H-1B petitions apply.
The status of a dependent of an H-1B non-immigrant is derivative of and linked to the status of the principal H-1B non-immigrant. Therefore, dependents are eligible for H-4 status upon 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 non-immigrant.
An alien employee substituting the original alien beneficiary of the “approved” alien labor certification application can file his/her 7th-year H-1B extension as long as 365 days have passed since the filing of the labor certification for the original substituted employee, and the labor certification application has not been denied or revoked. Additionally, in order to prove that the employer decided to substitute the employees, before the substituting employee can apply for a 7th year H-1B extension, the employer should have filed I-140 petition for him/her using the certified labor certification application. In all these cases, the alien should maintain a valid H-1B status without violation.
In case the spouse of the H-1B alien also carries an H-1B visa status and reaches the 6-year limit at the same time when the principal H-1B alien who filed for labor certification application reaches the 6-year limit: the accompanying H-1B spouse can NOT extend her/his own H-1B status beyond the 6-year limit in the event that the principal alien labor certification H-1B alien becomes eligible for the 7th year extension of H-1B status based on the 365-day rule under DOJ Authorization Act of 2002 and AC 21. However, the spouse can file I-539 to apply for change of status from H-1B to H-4 along with the principal spouse’s 7th year extension petition, and USCIS will approve such application for change of status to H-4 even beyond the H-visa status limit of 6 years. In other words, the H-1B accompanying spouse cannot extend his/her own H-1B status beyond 6 years but can change the status to H-4 and remain in the country beyond six years until the green card is adjudicated. In all these cases, the aliens should maintain valid H-visa status without violations.
