The U.S. Citizenship and Immigration Services ("USCIS") issued its newest policy regarding eligibility for H-1B extension beyond the six-year limit under The American Competitiveness in the Twenty-First Century Act ("AC21"). Among other benefits, AC21 allows foreign nationals to extend H-1B status beyond the six-year maximum if certain criteria are met, and to change jobs during an employer-sponsored green card process under certain limited circumstances. The purpose of the USCIS' latest AC21 memo is to provide instructions to government officers, and to inform the public on the procedure the USCIS will follow in adjudicating AC21 extension requests.

• Labor Certifications Must be Valid and Unexpired for AC21 Eligibility
  For requests of one-year AC21 extensions beyond the six-year limit, the foreign national must be the beneficiary of a labor certification, or an I-140 petition, filed with the appropriate government agency more than 365 days before the start date of thenAC21 H-1B extension. According to the most recent USCIS memo, if the labor certification has been certified, but an accompanying I-140 petition has not been filed within 180 days, the beneficiary will no longer be eligible for an AC21 extension beyond the six-year limit because the labor certification will have expired, and will no longer be valid.



• Immigrant Visa Must be Unavailable and I-140 Approved at Time of H-1B Filing to Receive Three-Year AC21 Extension
  In its latest policy memo, the USCIS states that, when requesting a three-year H-1B AC21 extension, the beneficiary's I-140 immigrant petition must be approved, and the beneficiary's priority date must be unavailable, at the time of filing the H-1B extension request. The petitioner may not assume that the beneficiary's priority date will no longer be current or unavailable at some point during the adjudication of the H-1B extension petition. The USCIS adjudicators have been instructed to look to the Department of State's Visa Bulletin as of the filing date before approving three-year H-1B extension requests.



• Underlying I-140 Must be Approved Before an Adjustment of Status Application Will be Approved
  Pursuant to AC21, an I-140 immigrant petition remains valid if the related adjustment of status application has been pending for at least 180 days, and the foreign national is accepting new employment in the same or similar capacity. This is commonly known as "adjustment portability".
  
  The USCIS' latest AC21 memo clarifies that the agency will not consider an I-140 valid merely through the act of filing the petition with the USCIS, or through the passage of 180 days, even if the criteria for adjustment portability are otherwise met. An I-140 petition must be approved before the USCIS will make a determination of portability, and grant permanent resident status based upon employment. Moreover, the USCIS will not make a favorable portability determination if the underlying I-140 petition is denied, even if the denial occurs more than 180 days after the filing of the I-140 petition.
  
  Please note, however, that I-140 approval is not required prior to accepting new employment in the same or similar capacity, so long as the adjustment of status application has been pending for more than 180 days.



• Clarification Regarding Cap-Exempt H-1B Petitions
  As supported by statute, the newest USCIS policy confirms that an H-1B beneficiary employed by a cap-exempt petitioner will not be counted towards the H-1B numerical limitation if the beneficiary applies for concurrent employment with a non-exempt H-1B employer.

How This Affects You
Employers should note that the timing of labor certification and I-140 immigrant petition filings affect an employee's eligibility for additional H-1B periods of stay beyond the six-year maximum. The USCIS' policy memo also clarifies that an I-140 must be approved prior to the a favorable determination of adjustment of status portability, even if the I-140 has not been approved within 180 days of filing the adjustment of status application.

We will provide further information as soon as it becomes available.

The full text of the USCIS memo may be found here: http://www.aila.org/content/default.aspx?docid=25599.

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