INS's Broad Interpretation on H1B 7^th-Year Extension Eligibility
Posted May 10, 2002

We reported in the May 03, 2002 issue of the MurthyBulletin on an opinion letter that our Office received from Efren Hernandez, III, INS Director, Business and Trade Services, regarding an important issue of interest to persons in H1B status. Our article, entitled 'Dormant' H-1 Petitions Remain  Valid is available on MurthyDotCom. Some of our colleagues have also been busy requesting similar INS advisements and have been kind enough to share information. An important issue in one such recent advisement concerns the ability of persons to obtain H1B status extensions beyond the six-year period.

As regular MurthyBulletin and MurthyDotCom readers are aware, the American Competitiveness in the Twenty First Century Act (AC21), in certain circumstances, allows persons in H1B status to obtain extensions of that status beyond the six-year period (usually referred to as "seventh-year extensions"). Sections 106(a) and (b) of AC21 set forth the following two requirements for such extensions: first, a labor certification application must have been filed for the person at least one year prior; and, second, either the I-140 (Immigrant Petition for Alien Worker) must also have been filed and be pending or approved, or else the I-485 must be pending. In those cases that do not require the filing of a labor certification, like the national interest waiver cases, the I-140 must have been filed a year prior and the I-140 or the I-485 must be pending.

The question an attorney posed to Mr. Hernandez was whether the INS would approve the seventh-year extension of the H-1 for an employer other than the one that filed the labor certification and I-140. Mr. Hernandez advised that the seventh-year H1B extension is not employer specific. A person can obtain an extension of H1B status with Company B based upon a labor certification and I-140 filed by Company A.

Mr. Hernandez also stated that this interpretation would be "explored" during the process of rulemaking for AC21. That is, the regulations that will eventually interpret AC21 in more detail may change or modify the interpretation now being given by the INS.

This is indeed good news since The Law Office of Sheela Murthy, P.C. has been advocating this approach with the INS since AC21 was passed in October 2000. This interpretation appears to be appropriate and justified under the wording of the AC21 law and may benefit many who have had to change employers due to the current soft economy. We trust that the INS will be consistent in issuing its regulations with the plain meaning of the law that was intended to have a broad and generous interpretation of such gray areas. As always, we thank the INS for their continual efforts to provide clear-cut guidance on matters of policy and interpretation of the law.