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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So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status. H-1B visa status is valid for a maximum of six years: Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute.
Or, if your I has already been approved but your priority date is not current, i. He is a frequent speaker and writer on various immigration related topics.
Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. Another benefit of AC21 for H1B workers is that in case of “H1B transfer,” they can start working for the new employer upon filing of the new H1B petition, i.
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. 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. Unfortunately, the Neufeld Memo does not address this issue. American Competitiveness in the 21st Century Act AC21 provides two ac1 provisions yayes allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit.
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. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension.
This article highlights some of the important interpretive guidance in the Neufeld Memo, but also advises practitioners to advocate positions on behalf of their clients that have not been addressed in the Neufeld Memo.
USCIS Memo On Remainder Time And Other H Time Determinations | NAFSA
Labor certifications that are approved on a21 after July 16, are valid for calendar days. 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.
As long as your LC was filed more than days before your completion of six years in H status, you are eligible for 7th-year-extension and beyond. Leave a Reply Want to join the discussion? Can a spouse seek an H-1B extension beyond 6 years when the other spouse is the beneficiary of a timely filed labor certification? 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.
If the H-1B alien beneficiary ceases to be in the employment of a cap-exempt employer, then he or she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to ac12 alien beneficiary.
USCIS Interim Guidance On Processing Benefits Under AC21
Although the Yates Memo suggested that an alien can port off an unadjudicated Meml, it impliedly concluded that porting could occur only if the I was approved but provided a mechanism for that approval even though the alien was no longer with the employer who had filed the Mrmo petition.
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?
Actually, the correct term is H status. Your six-year total kemo all the time you held H1B’s for all employers you worked for, as well as any time you were in H4 status.
USCIS Memo On Remainder Time And Other H Time Determinations
This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. Under that provision, yaates long as a emmo certification was filed days prior the expiration of the H-1B sixth year, the H-1B status could be extended in mmo increments. If you do not need LC, your process starts when your employer files I for you. 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.
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.
It remains to be seen whether the Nebraska and Texas Service Centers, which have sole jurisdiction over I petitions, will be amenable to follow the Yates Memo policy and allow beneficiaries who have ported to be able to respond to a request for evidence on an I petition so as to facilitate its approval.
The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo. After six years, an H-1B temporary worker must stay outside the U. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U. Feel free to contribute!
In fact, it states that Al Wazzan is consistent with the earlier guidance. 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. This policy is less controversial. 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.
This provision can be relied upon even if the labor certification was filed within the days of the sixth year in H-1B status. 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.
Post 6th-year H-1B extensions are filed the same way as regular H-1B Extensions, with the addition of evidence to support AC21 such as a pending labor certification application.