Recapturing H-1B Time Spent Outside the US
As a general principle, days spent outside of the United States during the validity period of an H-1B petition will not be counted toward the 6-year maximum period of stay in the United States in H-1B status. Any trip of at least one 24-hour day outside the U.S. for any purpose, personal or business, can be recaptured. Detailed documentation that independently corroborates the time spent outside the United States must be presented when filing an I-129 petition that claims recapture time. Note that the burden of proof rests on the H-1B applicant. Click here for details.
H-1B Extensions Past Six Year Maximum
Under sections 104 and 106 of the American Competitiveness in the 21st Century Act ( AC21), it is possible to obtain H-1B status beyond the six-year limit for the following individuals:
- 365 days or more have passed since the filing of any application for labor certification (Form ETA 750 or 9089) 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 (I-140); or
- The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.
An application for extension of stay under the AC21 provisions will, like a regular application for extension of stay, benefit from the "240-day rule".
H-1B nonimmigrants whose status has been granted under either of the AC21 provisions continue to be bound by the requirements to have a valid H-1B visa for reentry to the United States.
AC21 § 106(a): Labor cert or I-140 filed a year or more ago
Under AC21 § 106, an H-1B nonimmigrant can receive H-1B status beyond the six-year maximum, in one-year increments, if 365 days or more have passed since either an application for Alien Labor Certification (Form ETA 750A-B or ETA 9089) or a petition for immigrant worker (Form I-140) has been filed on the alien's behalf.
The priority date in an employment-based case is the date that a labor certification application was first filed, or, for those categories exempt from the labor certification requirement, the date on which an employment-based preference petition (I-140) was filed with USCIS. Since that same date is also the referent to eligibility for this benefit, knowing the alien's priority date is a convenient way of tracking eligibility for H-1B extensions beyond 6 years.
H-1B status under this provision may be granted in one-year increments until the labor certification or I-140 is denied. If the labor certification or I-140 is approved, the individual can continue obtaining 1-year extensions thereafter, until an adjustment of status or immigrant visa application is either denied or approved.
Filing requirements for AC21 106(a) benefits
Guidance from USCIS memo from Michael Aytes (December 27, 2005):
- This provision does not alter the requirement that the application for extensions of H-1B stay continue to be filed in a timely manner, i.e., before the expiration date on the alien's current I-94.
- H-1B aliens who are already eligible for the AC21 extension benefit, but who have some time left towards their regular 6-year maximum, can use a single petition to extend their stay for the remainder of their 6 year eligibility, as well as for up to a year of AC21 eligibility beyond 6 years. They do not have to file separate petitions, so long as the total period requested does not exceed three years. For example, for an AC21-qualified alien who has six more months of regular 6-year eligibility beyond his or her current H-1B end date, the employer can file a single petition asking for up to 1.5 years of extension, comprising the 6 months of regular 6-year eligibility and the maximum 1-year-at-a-time of AC21 extension eligibility.
- An alien is eligible for an extension of H-1B status beyond the 6th year as long as either the qualifying labor certification application or I-140 petition has or will have been pending for at least 365 days prior to the alien's requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period. If the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, thus leaving a gap in valid status, then the extension of stay request cannot be granted.
- H-4 dependents are also eligible for the extension based on the H-1B principal's eligibility.
AC21 § 104(c): Aliens chargeable to oversubscribed countries
An H-1B nonimmigrant who is the beneficiary of an approved employment-based first, second, or third preference petition, but who cannot apply for adjustment of status solely because his or her priority date is not current due to the "per-country" limits on immigrant visa availability (i.e., the alien is chargeable to a country that has become "oversubscribed"), may receive "an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon."
AC21 § 104(c), which impacts, but does not amend INA § 214(g)(4)
Although the statute does not state that the individual must be the beneficiary of an approved preference petition, the requirement that the petition be approved is implied by the statute's requirement that the individual be "eligible to be granted that status but for application of the per country limitations." An unapproved I-140 would be a ground for ineligibility for an immigrant visa number in addition to the per-country limit. DHS has confirmed that the petition must be approved in order to benefit from AC21 104(c) extensions.
AC21 § 104(c) ONE-TIME PROTECTION UNDER PER COUNTRY CEILING.--
Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who--
(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and
(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs,
may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.
The statute says that the 104(c) extension exception applies to individuals who are eligible for an EB-1, EB-2, or EB-3 visa number "but for application of the per country limitations applicable to immigrants under those paragraphs." The phrase "per country limitations" might be read to refer to the 7% "per country levels" established by INA § 202(a)(2). That reading would limit this benefit only to those experiencing unavailability of a visa number arising from the "per country" limitations, which are separate from the overall numerical restrictions in an employment-based category. A 2008 USCIS memo clarified, however, that both "per country limitations" and "worldwide" unavailability of visa number unavailability can serve as the basis for a 104(c) extension. Individuals who have questions about this may wish to consult an experienced immigration lawyer.
Supplemental Guidance Related To Processing Forms I-140, I-129, and I-485 Under AC21 and ACWIA [USCIS, Donald Neufeld (May 30, 2008)]
AC21 § 104(c) is applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of a per country limitation to which that alien is subject or, alternatively, if the immigrant preference category applicable to that alien is, as a whole, "unavailable". Any petitioner seeking an H-1B extension on behalf of an H-1B alien beneficiary pursuant to AC21 §104(c) must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations or, alternatively, because the immigrant preference classification applicable to the alien is "unavailable".
In order to make a determination as to the H-1B alien beneficiary's eligibility for an extension of H-1B status under the provisions of §104(c) of AC21, USCIS adjudicators are instructed to review the Department of State Immigrant Visa Bulletin that was in effect at the time of filing of the Form I-129 petition. If, on the date of filing of the H-1B petition, the Visa Bulletin shows that the alien was subject to a per country or worldwide visa limitation in accordance with the alien's immigrant visa "priority date", then the H-1B extension request under the provisions of §104(c) of AC21 may be granted. To establish the alien's priority date, USCIS may accept a copy of the H-1B alien beneficiary's Form I-140 petition approval notice.
Unlike status granted under § 106(a)-(b), which is limited to one year at a time, status under §104(c) may be granted for up to three years at a time. Also, despite the statutory heading describing the 104(c) benefit as a "one-time protection," DHS allows more than one extension to be requested under this provision if the need arises.
Supplemental Guidance Related To Processing Forms I-140, I-129, and I-485 Under AC21 and ACWIA [USCIS, Donald Neufeld (May 30, 2008)], stated, "Despite the title of AC21 §104(c), referring to “one-time” protection, USCIS may grant such H-1B extensions, in a maximum of three year increments, until such time as the alien’s application for adjustment of status has been processed and a decision made thereupon.