H1B Extensions Beyond the Normal Six-Year Limit (AC21) Under the Trump Administration

[Attorney_22]

This week, Murthy Law Firm attorneys will answer questions regarding H1B extensions beyond the normal six-year limitation.

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[ramyah1]

are there any recent h1 extension denials and approvals happening? if denied on what basis h1 extension is denied ? and what cases of h1 extension is getting  approved?

[h1girl1947]

Hi. 

I recently filed my h1b extension and it got denied on speciality occupation grounds. I have bachelors degree in Electronics and Communications Engineering and 12 years of experience in IT. this is my first h1b extension petition after my i 140 grot approved.

What are the possible options for me to take further steps.

1. Can i file change of status to H4 on my spouse's h1b being in us by submitting form i539?

2. do i need to travel abroad to canada or uk or mexico to get H4 stamped and come back and then file H4 EAD. In the denial Notice , it says to appeal on denial with additional evidence before 33 days. Do i need to submit appeal first and then go for h4 stamping? In this case while my appeal is in progress, do they give H4 approval to me?

3. Or Do i need to first get H4 stamped by travelling to any abroad country and then come and appeal on denial?

4. When i apply for Appeal, for how long can i stay lawfull in US? 

5. Can i apply for new H1B amendment if i have new job or new contract in hand with same or different employer ? If i do this, how long can i stay in US ? 

 

[sim1001]

I recently got my I-140 approved via the EB-1A category. However my 6 years on my H-1b is about to expire at the beginning of March. Can I get an H-1b extension based on my approved I-140? My priority date is current and it hasn't been 365 days. However i've seen some information online that i could still extend my H-1b based on an approved I-140. Is this correct?

[Dhruti21]

What happens to cases where H1B extensions are approved two times for 3 years each , post original six years completion  with Approved I -140 in place. Even those H1B cases will be considered under the new rule to not get further extension or it is only first time H1B reaching beyond six years extension are in discussion ? Please specify the scope here. 

[Vandan]

Are you guys seeing any changes in H1B approval process after the extension news became public? Are we already seeing the effect and H1Bs are getting denied? I am planning to file my extension mid-January so wanted to be prepared to face the worst situation. 

 

[Attorney_23]

On 1/4/2018 at 2:07 PM, ramyah1 said:

are there any recent h1 extension denials and approvals happening? if denied on what basis h1 extension is denied ? and what cases of h1 extension is getting  approved?

No, we have not seen any denials based on this. Keep in mind that this is merely an unconfirmed proposal. As of yet, no policy chance has been announced. (And, as we explain in our article on this topic, even if this change were enacted, it likely would simply mean that qualifying H1B workers would receive 1-year extensions, rather than 3-year extensions.)

Legislative Barriers Likely Prevent Trump from Eliminating AC21 H1B Extensions

[Attorney_23]

16 hours ago, sim1001 said:

I recently got my I-140 approved via the EB-1A category. However my 6 years on my H-1b is about to expire at the beginning of March. Can I get an H-1b extension based on my approved I-140? My priority date is current and it hasn't been 365 days. However i've seen some information online that i could still extend my H-1b based on an approved I-140. Is this correct?

Generally speaking, yes, one should still be eligible for a 3-year H1B extension based on the approved I-140. (Again, no policy change has yet to be instituted.) It may be wish to file the H1B extension request ASAP, though, just in case.

[Attorney_23]

16 hours ago, Dhruti21 said:

What happens to cases where H1B extensions are approved two times for 3 years each , post original six years completion  with Approved I -140 in place. Even those H1B cases will be considered under the new rule to not get further extension or it is only first time H1B reaching beyond six years extension are in discussion ? Please specify the scope here. 

If the new policy were instituted, we feel one in this situation would likely still be granted 1-year H1B extensions. (If the Trump Administration tries to block the 1-year extensions, lawsuits will quickly be filed, and we feel it is likely that the courts would rule against Trump on this.)

[srma]

Hello,

I am planning travel to India in the next week. As part of the travel, I plan on getting my h1b visa extension stamped.

I have completed 6 years on the h1b, have an approved i-140 from previous employer, i-140 pending with current employer. 

I have approved I-797 for additional three years based off my approved 140 from previous employer.

Is it advisable to travel for the visa extension stamping?

Since the language in AC21 says "may" for 3 year extension vs "shall" for 1 year extension, what is the possibility of stamping being given for only 1 year even if you have an approved 797 for 3 additional years?

I have a full time position with a reputed company. My extension is dropbox option, same position, same employer.

Thank you for your feedback.

[priyanka.sangineni]

Hi,

I am working on H1B visa for past 5 years and my I140 is recently approved on EB2. how does the new proposal for having H1B visa only for 6 years would impact H1B visas ?

[SuryaUSA]

Hi, 

My questions related to understanding the existing rules and not related to upcoming changes from the Trump Administration.

I got two I-140 approvals from my previous companies (A and B). Nine months ago, Company C gave an offer and filed extension based on my previous I-140. I got 3 years extension, and now I am working for that company C. They may start my GC process soon after the completion of one year service. So, I am wondering whether I can get my GC labor and I-140 approval before my current I-797 petition expires in April 2020 

So, my question here is, would it be possible for my current company C to file another extension in 2019 using my previous approved I-140s or I must have new I-140 with Company C as a petitioner before applying for an extension second time?

When I ask the same question, I heard that once a person gets his I-140 approved, any company can file a new H1B petition(s) and apply for three years extension even if that person left the USA a few years ago and worked in their home country. He always considered under Cap-exempted petition. Please clarify how much truth in this? 

[rmb]

pursuant to AC21 section 106(b), an H1B worker is eligible for an extension of H1B status in one-year increments beyond the six-year maximum, based on a labor certification or I-140 petition filed at least 365 days prior.

 

Based on the above, what if some one  had applied the labor certification with in 365 days of the six year maximum , Got approved on time(before six year max out date) and also APPROVED 140 on time(before six year max out time) and had 2 extension(3 years + 3 years) based on I140 after that. Does that mean if this change were enacted, one is such situation will not get even 1 year extensions since the labor certification was not filed at least 365 days prior.

[Attorney_23]

The proposal to reinterpret AC21 extensions has been abandoned. Further, consistent with our analysis, the USCIS now appears to acknowledge that it has no authority to end one-year AC21 extensions. So, it appears there is no reason to be concerned by this proposal.

[Pan Samar]

Hi Experts,

I have Electrical & Electronics degree and over 12yrs of IT experience . Am completing my 6yrs on H1b by Jan2019. I dont have any prior approved 140. My current employer filed for my i140 in EB2 category for title "Senior Financial Applications Architect" and it got RFE for "progressive experience" and later on providing supporting docs, it resulted in denial of the case few days back. Keeping in consideration that i have just 1yr to finish my 6yrs on H1b  and i dont have any approved 140, what are the chances/choices i have to continue working in US on legit work permit?

1. With my current employer, if they go for re-opening or Appeal for the denial, what are the chances of it getting my i140 approved?
- What other options i have with my current employer?

2. With any new employer (if i switch soon), can new employer port-in my current priority date and file for new i140 on EB2 again, with different title or almost same title OR is it safer to file EB3 than EB2 (as EB3 may not have much evidences requirement/issues like EB2)?

Presuming that by Apr2019, H1b premium will again be put on hold until Oct, i may have time only until Mar to switch to new job in case that be the last but safer choice. So, i request you to please suggest me what should be done in such case.

Regards,
Sam