By Cyrus D. Mehta and Manjeeta Chowdhary*
H-1B standing is usually restricted to 6 years in as much as three-year increments. One statutory exception is § 104(c) of the American Competitiveness within the 21st Century Act (AC21) (8 CFR § 214.2(h)(13)(iii)(E)), which allows three-year extensions for staff with an authorised I-140 petition whereas no immigrant visa quantity is obtainable. The employee in H-1B standing could change employers and proceed to acquire AC21 § 104(c) three-year extensions as long as an authorised I-140 stays in place and no immigrant visa quantity is obtainable. That is the prevailing scenario for a lot of EB-2/EB-3 staff in backlogged classes—usually for years—whereas they lawfully preserve standing via successive § 104(c) extensions and employers. Nonetheless, as soon as the precedence date turns into present, § 104(c) can not be used to hunt extensions as a result of a visa quantity is now accessible.
One other statutory exception, AC21 § 106(a) (8 CFR § 214.2(h)(13)(iii)(D)) authorizes one-year H-1B extensions when a PERM labor certification or I-140 immigrant petition has been filed not less than one yr earlier than the ultimate of the 6th or ultimate yr in H-1B standing. The employee who’s ineligible underneath AC21 §104(c) can depend on this provision, § 106(a), because the underlying labor certification supporting the I-140 petition was filed lengthy earlier than the top of the sixth yr.
The issue arises when an H-1B employee who has modified employers finds that neither provision matches. As soon as a visa quantity turns into accessible, § 104(c) not helps three-year extensions by definition (its safety ends when a visa is instantly accessible), and the H-1B employee usually can not modify standing via the I-140 petition of the prior employer as a result of the underlying job provide not exists. On the identical time, § 106(a)—which allows a one-year extension because the underlying labor certification was filed a couple of yr previous to the sixth yr — might also be unavailable if the precedence date has change into present and the H-1B employee has not but filed for adjustment of standing or sought an immigrant visa inside one yr of visa availability.
That is the AC21 lure for H-1B staff who’ve modified jobs. In the meanwhile a visa quantity turns into accessible, the H-1B employee can not search a three-year extension and might also not have the ability to search a one-year extension as they can’t use the prior employer’s I-140 petition to regulate standing and thus prolong H-1B standing underneath § 106(a).
8 CFR § 214.2(h)(13)(iii)(D)(10) supplies:
An alien is ineligible for the prolonged adjudication delay exemption underneath paragraph (h)(13)(iii)(D) of this part if the alien is the beneficiary of an authorised petition underneath part 203(b) of the Act and fails to file an adjustment of standing utility or apply for an immigrant visa inside 1 yr of an immigrant visa being licensed for issuance primarily based on his or her desire class and nation of chargeability. If the accrual of such 1-year interval is interrupted by the unavailability of an immigrant visa, a brand new 1-year interval shall be afforded when an immigrant visa once more turns into instantly accessible. USCIS could excuse a failure to file in its discretion if the alien establishes that the failure to use was resulting from circumstances past his or her management. The restrictions described on this paragraph apply to any authorised immigrant visa petition underneath part 203(b) of the Act, together with petitions withdrawn by the petitioner or these filed by a petitioner whose enterprise terminates 180 days or extra after approval.
Which means if a person’s I-140 immigrant petition has been authorised and a visa quantity turns into accessible for that individual’s desire class and nation of chargeability, one has just one yr to take the subsequent step, both file an utility for adjustment of standing whereas in the USA, or apply for an immigrant visa via consular processing overseas. If one fails to use inside that one-year interval, one turns into ineligible for additional H-1B extensions past the six-year restrict underneath the “prolonged adjudication delay” rule. Nonetheless, USCIS could, in its discretion, excuse a failure to use inside that one-year interval if one establishes that the failure was resulting from circumstances past one’s management.
Thus, 8 CFR § 214.2(h)(13)(iii)(D)(10) supplies an exception if the H-1B employee can display that the failure to file was resulting from circumstances past his or her management. When a H-1B employee adjustments employers and can’t file for adjustment of standing as a result of the brand new employer has not initiated PERM labor certification or a pending PERM stays unapproved, she or he could possibly set up “that the failure to use was resulting from circumstances past his or her management.” In in search of a good train of discretion, the H-1B employee would clarify that it was not possible to use for adjustment of standing throughout the one-year interval as a result of the brand new employer’s PERM labor certification was nonetheless pending, and an adjustment of standing can solely be filed as soon as the labor certification is authorised—adopted by the concurrent submitting of an I-140 and adjustment of standing whereas recapturing the precedence date from the prior employer’s authorised I-140. It will also be additional argued {that a} PERM labor certification can take between 18 to 24 months to get authorised and this will also be used to display that the failure to file for adjustment of standing was past the management of the alien. Nonetheless, the USCIS’s resolution in such circumstances is discretionary, and approval shouldn’t be assured. In fact, the H-1B employee also can prolong H-1B standing primarily based on recaptured H-1B time spent outdoors the US earlier than invoking § 106(a). Within the meantime, if the brand new employer’s PERM labor certification comes via, the employee might be eligible to file an adjustment of standing, thus facilitating the extension underneath § 106(a).
The AC21 framework was designed to protect standing for professionals navigating the prolonged backlogs within the employment-based green-card course of. But, in right now’s fluid labor market, § 104(c) and § 106(a) don’t all the time align with profession mobility, particularly with those that are caught within the prolonged inexperienced card backlogs. 8 CFR § 214.2(h)(13)(iii)(D)(10) serves as a warning that well timed motion should comply with or eligibility for additional § 106(a) one-year extensions could lapse, thus inflicting the H-1B employee to fall into the AC1 lure the place they will neither depend on § 104(c) nor § 106(a). An H-1B employee who has modified jobs and obtained a three-year extension underneath § 104(c) can not hope to indefinitely search three-year H-1B extensions. They should have the brand new employer to well timed begin a brand new labor certification in order that they will apply for adjustment of standing inside one yr of the visa changing into accessible.
*Manjeeta Chowdhary is an Affiliate at Cyrus D. Mehta & Companions PLLC.
