In 2000, acting in response to the lack of productivity by the then-INS, Congress enacted ameliorative legislation, providing certain benefits to H1B nonimmigrants. Chief among these is the new authorization for extensions beyond the six year limit that otherwise exists created by this legislation. The specific language removing the six year limit can be found in Section 105 of Public Law 106-313 (the "American Competitiveness in the Twenty-First Century Act"):
§106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.
(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--
(1) the filing of a labor certification application on the alien's behalf (if such certification is required for the alien to obtain status under such section 203(b)); or
(2) the filing of the petition under such section 204(b).
(b) Extension of H-1B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien's lawful permanent residence.
Subsequently, the INS and its successor, the USCIS, published "policy memos" to guide their adjudicators in dealing with this legislation. While these policy memos are not a valid substitute for lawfully promulgated regulations (something the INS/USCIS have failed to do in the many years since 2000), they are nonetheless instructive. The following questions and answers are taken from the most recent such policy memo:
II. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE EXTENSION PROVISION OF §106(A) ALLOWING EXTENSION PAST THE H-1B 6 YEAR LIMIT
Question 1. 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 of time beyond the 6 years?
Answer: No. Section 106(a) of AC21 allows an alien to obtain an extension of H-1B status beyond the 6-year maximum period, when:
A. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or
B. 365 days or more have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum 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. Requiring the filing of two extension petitions merely increases petitioner and USCIS workloads, and has no basis in statute. In no case, however, may the total period of time granted on an extension exceed a cumulative total of 3 years. 8 CFR 214.2(h)(15)(ii)(B)(1).
Question 2. How early can a request for an H-1B extension beyond the 6th year be filed?
Answer: The April 24, 2003 guidance memorandum is modified in the following manner: a petitioner must establish that the above criteria (see Question 1 outlining requirements under Section 106(a)) were or will be met either on or before the requested start date on the H-1B extension application. Thus, 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.
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.
Question 4. In a labor substitution context, can both the original alien and the substituted alien apply for an H-1B extension beyond the 6-year limit based on §106(a) of AC21?
Answer: No. Only the “current” beneficiary (meaning the alien that was most recently substituted into the labor certification) is eligible to get an H-1B extension beyond the 6-year limit.
Question 5. Does a timely and non-frivolous I-140 appeal pending at the AAO allow an alien to request an H-1B extension beyond the 6-year limit?
Answer: Subject to regulatory modification, as long as a decision may be reversed on direct appeal or certification to the Administrative Appeals Office (AAO), USCIS will not consider that decision final for this purpose.
Question 6. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification was filed over 365 days ago, has been approved, but the I-140/I-485 has not yet been filed?
Answer: No. Until further guidance is published, a request for an H-1B extension beyond the 6-year limit should not be denied on the sole basis that an I-140 petition has not yet been filed.
Question 7. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or immigrant petition from an employer who is not the H-1B petitioner was filed for the beneficiary more than 365 days ago?
Answer: No. The statute does not require that the labor certification or immigrant petition must be from the same employer requesting the H-1B extension.
Question 8. Should service centers or district offices deny a request for an H-1B extension beyond the 6-year limit where the labor certification or the immigrant petition was filed over 365 days ago, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Question 9. Are H-4 dependents eligible for an H extension beyond the 6-year limit?
Answer: Yes. H-4 dependents are eligible for an extension of their H-4 status beyond the 6-year limit provided they meet the H-4 requirements and based on the principal (H-1B) alien’s eligibility for an H-1B extension beyond the 6-year limit. This includes cases where the dependent may have held another status prior to becoming an H-4 dependent. However, in order to qualify for an H-1B extension beyond the 6 year limit year of their own H-1B status, the alien must meet all the requirements independently of their H-1B spouse’s eligibility for a 7th year extension.
Question 10. What are the guidelines for processing 7th Year Extensions with the implementation of the new DOL PERM Program?
Answer: Guidance on this subject will be provided via separate memorandum.
III. Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT
Question 1. Can an H-1B temporary worker “port” under§105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.” In other words, porting under INA 214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”
Question 2. Can there be successive H-1B portability petitions filed for an alien while the previous H-1B petitions remain pending (i.e. creating a “bridge” of H-1B petitions)?
Answer: Yes. However, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay.
Question 3. If successive H-1B portability petitions can be filed, what happens if an alien’s nonimmigrant status expires while the H-1B portability petitions are pending and a petition in the “bridge” is denied?
Answer: As stated above, to be approved every H-1B portability petition must separately meet the requirements for H-1B classification and for an extension of stay. In the event the alien’s nonimmigrant status has expired while the petitions are pending, the denial of any filing in the string of extension of stay and/or change of status filings undercuts the “bridge” that “carried” any petition filed after the expiration of any approved status which will result in the denial of the successive requests to extend or change status.
It is important to keep in mind that if a PERM application or I-140 is denied, the six year limit applies again immediately.