By: Attorneys Robert L. Reeves and Elsie Hui Arias

As we discussed in a recent article, the Department of Homeland Security — U.S. Citizenship and Immigration Services (USCIS) published an interoffice memorandum clarifying how immigrant workers can change employers during the adjustment of status stage under the American Competitiveness in 21st Century Act of 2000 (“AC21”). This week, we will cover the USCIS’s policy regarding H-1B visa holders seeking to stay beyond the maximum six-year period or to change employers under AC21.

As we have noted in previous articles, H-1B visas are only issued to alien workers employed in a “specialty occupation” or a fashion models of distinguished merit and ability. The regulations define “specialty occupation” as an occupation that requires theoretical and practical application of a body of specialized knowledge and attainment of a bachelor’s degree or higher in the specific specialty as a minimum qualification for entry into the United States. Examples of H-1B occupations include teacher, accountant, computer programmer, and engineer. Immigrant workers can only be in H-1B status for a maximum of six years.
AC21 benefits H-1B workers approaching their 6th year of H-1B status. As the USCIS confirmed in the memo, an H-1B worker may extend his status beyond the six-year limitation if a labor certification or an immigrant visa petition has been filed, and 365 days or more have elapsed since the filing of the application. Departing from prior policy, the USCIS stated that the H-1B petitioner need only show that the labor certification or immigrant visa was or will have been pending for at least 365 days prior to the start date on the H-1B extension application. Previously, the USCIS denied H-1B visa petitions where the qualifying labor certification or immigrant visa had not been pending for the required 365 days at the time the request for extension of stay was filed.
An extension of H-1B status beyond the 6th year can 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 six-year period. However, if the qualifying labor certification, immigrant visa petition, or adjustment application has been denied, then the alien worker will not be able to stay beyond the six-year period.

The USCIS also confirmed in the AC21 memo that if a timely and non-frivolous appeal of a denied immigrant visa petition is pending at the Administrative Appeals Office (AAO), the USCIS will not consider the denial to be “final” for the purpose of requesting a 7th year H-1B extension. Additionally, the USCIS confirmed that an H-1B worker can still extend for a 7th year (and beyond) even where the employer who filed the qualifying labor certification or immigrant visa petition more than 365 days ago is different than the H-1B petitioner. The USCIS did not provide any guidelines regarding 7th year extensions under the new Program Electronic Review Management (PERM) labor certification program; guidance regarding this specific issue is forthcoming.

The USCIS also clarified its policy on H-1B workers changing employers under AC21. Immigrant workers in H-1B status can move (or “port”) to a new employer upon the filing of an H-1B petition by the prospective employer. The USCIS also confirmed that H-1B workers can port to a new employer even where their I-94 or last approved petition has expired, so long as the original petitioner filed a timely extension, and the alien worker is in a “period of stay authorized by the Attorney General.” Here’s an example: Employer A timely files an extension of an alien’s H-1B status. While this petition is pending, the original H-1B approved for Employer A expires. The H-1B worker is then in a “period of stay authorized by the Attorney General” while Employer A’s extension is pending, and is authorized to continue working for 240 days under the regulations. Employer B then files a new petition and the worker wants to port to Employer B. The USCIS confirms that the worker may move to Employer B upon the filing of the new petition, but advises that all petitions filed on the alien worker’s behalf while he is in a “period of stay authorized by the Attorney General” must be approved for the extension of status to be granted with Employer B. If the extension of status is denied and the original H-1B visa petition has expired, then the foreign national will fall out of status and accrue unlawful presence.

The USCIS advises that the memo provides officers with interim guidance, and that it will only be in effect until regulations for AC21 are published as a final rule, which could reflect a more restrictive interpretation. In the meantime, this memorandum is very helpful for H-1B visa holders seeking a 7th year extension or a change in employer.

Seeking extensions of H-1B visas with the same or different employer has become increasingly more difficult and complex. Employers or individuals seeking assistance with such matters should consult with knowledgeable and experienced immigration attorneys.