13 August 2014

Recapture PLUS 7th Year H-1B Extension? YES, YOU CAN!

Hi ALL! Welcome back!

A question was recently posed to me concerning an H-1B, 7th year extension, but there was a little twist involved:

What if I still have time left before the end of my 6th year on H-1B, can my employer request the 7th year extension in anticipation that the filed Labor Certification will still be pending at that time?

 The answer is YES.

As many of you probably know, the period a foreign worker can work on H-1B is 6 years. Under the American Competitiveness in the Twenty-First Century Act, also known as AC-21, a beneficiary’s H-1B status can be extended beyond the 6th year in either 1 or 3 year increments.  Under AC21 §106(a), a foreign worker can obtain an extension of H-1B status beyond the 6- year limit maximum period, when:

  • 365 days or more have passed since the filing of the application for labor certification… that is required or used by the alien to obtain status as an EB immigrant, or
  • 365 days or more have passed since the filing of an EB immigrant petition.

But, what if a situation arises as above? The exact scenario is this:

Current H-1B is set to expire on February 2015, but 6th year on H-1B does not end until December 2015. Perm Labor Certification now filed. Employer wants to submit a combined extension request for the remaining time left on the initial 6year period plus the 1-year extension (for an end date of December 2016).

 In a 2005 interoffice memorandum issued by USCIS, the following question was posed:

When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional Form I-129 requesting an extension beyond the 6 years?

 Answer: NO…Once the requirements have been met, the alien may be granted an extension beyond the 6-year limit on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period.

  http://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2005/ac21intrm051205.pdf

So, although the extension can only be processed in 1-year increments under §106(a), USCIS prefers that an extension request be combined for any remaining time left on the initial 6-year period plus the 1-year extension. If applied to the scenario provided above, it works perfectly: Combined extension request for the remaining time left on the initial 6-year period from February 2015 to December 2015 plus the extension request for the 1- year (7th year) extension (based on the pending Labor Certification). Therefore, the requested end date will be December 2016.

This not only saves the employer from the hassle of filing 2 extension requests, but it also decreases the workload for USCIS.

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Posted August 13, 2014 by KrystalAlanis in category "Green Card", "H-1B", "Labor Certification

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