The American Competitiveness in the 21st Century Act (AC 21) has been a great benefit for those whose applications for permanent residency cannot be completed before the sixth year in H-1B status. Under Section 106(a) of AC 21, an individual is able to extend H-1B status beyond six years if, inter alia, a labor certification was filed 365 days prior to the end of the 6th year.
In companion Section 104 (c) of AC 21, the H-1B status may be extended for three years at a time if one is a beneficiary of an employment-based I-140 immigrant visa petition, and is eligible to adjust status but for the backlogs in the employment-based first (EB-1), second (EB-2) or third preferences (EB-3).
AC 21 is therefore a generous ameliorative measure against delays in processing of permanent residency application, or even if there are no processing delays, against delays caused by backlogs in the EB preferences.
For example, a beneficiary of an I-140 petition in the EB-3 for India may well have to wait for the green card for over a decade, and AC 21 allows the H-1B status to be extended long after the six year limitation has ended, thus allowing the intending immigrant to work in the US and remain in status.
This benefit to extend H-1B status comes to an end if one of the applications that served as the basis for the extension – the underlying labor certification, I-140 petition or adjustments of status application – gets denied. The authors will argue that once the H-1B status is extended under AC 21, it cannot be switched off if there is a denial of the underlying application or petition during either the one year or three year extension period. Such a denial, on the other hand, should only preclude a further H-1B extension under AC 21.
We give great credit to immigration scholar and guru, Naomi Schorr, for bringing to our attention in her recent article, It Makes You Want To Scream:
Who Knows? 15 Bender’s Immigr. Bull. 1387 (Oct. 15, 2010), that there is ambiguity in a not so clearly written USCIS memorandum that seems to suggest that the H-1B status may no longer be valid after the denial of the underlying application or petition. In a Memorandum from William R. Yates on a number of AC 21 issues dated May 12, 2005, http://bit.ly/aMjERW, one section indicates that the H-1B extension under AC 21 could be applied during the remainder of the sixth year for whatever time was left for that year plus the additional extra year under AC 21. Question 3 is worth repeating:
Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?
Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or
C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.
We agree with Ms. Schorr that we cannot precisely understand what this question and answer actually means. It could mean, as Ms. Schorr suggests, a situation “where a petition for a sixth year has been approved, but the underlying basis for the extension is denied before the end of the six years? Or, does it reach someone who’s already in an extended period of H-1B status and act to immediately, by operation of law, put an end to that status? If so, it’s certainly a trap for the unwary”
The authors offer an alternative reading of this question and answer. We note that the Yates Memorandum talks about the extension rather than the revocation of status. It could mean that the USCIS may deny the H-1B after the filing but before it is adjudicated during the sixth year. For example, an H-1B extension is filed requesting an additional three months remaining in the sixth year (based on 3 months of time spent abroad that can be recaptured towards the sixth H-1B year) and an additional 7th year under AC 21.
If at the time of adjudication, the USCIS examiner finds that the underlying labor certification has been denied, the extension request can still be granted for an additional 3 months, which is the remainder of the sixth year, but not for the 7th year. Once the USCIS has allowed the H-1B temporary worker to cross the 6th year Rubicon, that decision remains intact even if the labor certification or I-140 immigrant petition later go down in flames. Denial of any of these applications does not mean that the 7th year extension was improvidently granted nor is it a reason to revisit it.
Gary Endelman & Cyrus D. Mehta
