USCIS has released a May 12, memorandum interpreting a Yates notes that prior AC21 guidance memoranda remain in effect and the. Mr. Yates indicates that the proposed regulation may be more restrictive than the memo. The USCIS has not even issued proposed AC This issue is addressed in a USCIS memo discussed in our May 27, article, Yates May Memo on AC21 and Is, as well as our.

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Can an alien exercise portability after the adjustment of status application has been pending for more than days but the I petition either remains unadjudicated or has been denied?

So if an approved labor certification wasn’t used in an I petition within days, it would no longer be able to support an H1B post 6th-year extension.

Review the pending I meemo to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within days.

In any event, the need to make such an argument will be obviated if the USCIS re-institutes premium processing for I petitions, thereby allowing for swifter approvals. Your six-year total includes all the time you held H1B’s for all employers you worked for, as well as any time you were in H4 status. Unfortunately, the Neufeld Memo does not address this issue. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U.

USCIS Interim Guidance On Processing Benefits Under AC21

Leave a Reply Cancel reply Your email address will not be published. Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit. AC21 also provides meemo flexibility for certain aliens who have a pending adjustment of status application for more than days. When a response is received, and if the petition is approvable, following the procedures in part A above.

The Neufeld Memo emphasizes that the beneficiary must not have ceased to be employed by a cap-exempt employer in order to be eligible for a concurrent H-1B petition that is filed by cap-subject employer.

This provision can be relied upon even if the labor certification was filed within the days of the sixth year in H-1B status. Post 6th-year H-1B extensions are filed the same way as ac1 H-1B Extensions, with the addition of evidence to support AC21 such as a pending labor certification application. Or, if your Memmo has already been approved but your priority date is not current, i. If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits.


But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I is not filed within six months of LC approval. If it is av21 that a beneficiary has ported off of an unapproved I and I that has been pending for days or more, the following procedures should be applied: If you do not need LC, your process starts when your employer files I for you.


As long as your LC was filed more than days before your completion ac211 six years in H status, you are eligible for 7th-year-extension and beyond. In other words, while an alien is the beneficiary on an H-1B petition approved through a cap-exempt employer, he or she can also be the beneficiary of an H-1B petition filed concurrently through a non-exempt employer.

Mwmo that provision, so long as a labor certification was filed days prior ywtes expiration of the H-1B sixth year, the H-1B status could be extended in one-year increments. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. You may extend your H1B status annually in one-year increments if your green card process was started at least days prior to the day when you reach the six-year limit. Actually, the correct term is H status.

USCIS Memo On Remainder Time And Other H Time Determinations

Can a spouse seek an H-1B extension beyond 6 years when the other spouse is the beneficiary of a timely filed labor certification? This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to.

This policy is less controversial. Labor certifications that are approved on or after July 16, are valid for calendar days. Your green card process begins when a labor certification LC application is filed on your behalf. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension. So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of mwmo.


The Neufeld Memo allows for additional time to acquire new H-1B employment and remain eligible to apply for change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the employer.

However, the time you spent outside the U.

AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum limit of six years while the permanent residency process has not yet been completed. If the USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.

In fact, it states that Al Wazzan is consistent with the earlier guidance. Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute. There is no AC form, petition or application. H-1B visa status is valid for a maximum of six years: Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I portability purposes.

USCIS Yates Memo On Processing Benefits Under AC21 | NAFSA

Note that a person’s eligibility for 3-year extension beyond the 6th-year limit is based on zc21 number availability at the time of filing H1B yatse, not on a later date when the extension is actually reviewed.

If a request for additional evidence RFE is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue.

He is a frequent speaker and writer on various immigration related topics. In this section we will discuss the details of how H1B holders can take advantage of AC Your email address will not be published.