Beware Travel Abroad in 7th Year of H1B – June 2001
Posted Jun 22, 2001

On June 11, 2001 Secretary of State Colin Powell issued a cable message to consulates interpreting section 106 of the October 2000 law known as the American Competitiveness in the Twenty-First Century Act (AC21). In this article in the MurthyBulletin, we highlight the portion of the cable that discusses the effect of a "7^th year" H1B extension on the ability to obtain an H1B visa. As background, subsections 106(a) and (b) of AC21 provide for the ability to obtain an H1 extension beyond six years in some circumstances when the Green Card process was started over a year before.

H1B Extensions Beyond Six Years

The cable explains that subsection 106(a) of AC21 exempts an H1B holder from the six-year limit on stay, under certain circumstances, when the Green Card process is taking a long time. The cable also explains that subsection 106(b) provides for extensions in one-year increments until a final decision is made on the person's permanent resident status. The message then goes on to give a very narrow interpretation of the nature of the extension: only the person's stay in the U.S. is extended, but the H1B petition is not extended. In order to have a visa issued, a person must have a valid petition. Therefore, this interpretation means that a person who has been granted the 7^th year extension is not able to travel, because an H1B visa will not be issued.

The distinction between the duration of a person's stay and the validity of a petition is a real one under immigration law. The INS makes two separate determinations on each H1B petition, and the approval notice mentions both. For example an H1B approval notice may state that the petition and extension of status have been approved, or that the H1B petition has been approved but the extension of status has been denied. However, it is unlikely that the Senators and Members of Congress who drafted and approved AC21 would have had this somewhat technical distinction in mind. Most people are completely unaware of the difference between an extension of the petition and an extension of the beneficiary's stay.

Perhaps when INS issues its guidance on 106(a) and (b) the Department of State (DOS) may reconsider its position. And in fact, we at The Law Office of Sheela Murthy can confirm that when these 7^th year extensions are approved, the approval notice language is exactly the same as in other H1B cases. So there is no logical or legal reason to assume that only the person's stay, and not the petition, has been extended.

To summarize, the DOS has issued its interpretation of the AC21 law for those whose H1B extensions have been approved, and has determined that it will not issue a new visa stamp in this situation. So beware of travel abroad after having completed 6 years of your H1B!