H1B Extensions Under the 21st Century DOJ Appropriations Act
Posted May 09, 2003

On April 24, 2003, William R. Yates, the Acting Associate Director for Operations of the Bureau of Citizenship and Immigration Services (BCIS), issued a memo (Yates Memo) to provide guidance on processing H1B petitions affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (21st Century DOJ Appropriations Act). The 21^st Century DOJ Appropriations Act amended the provisions of AC21 relating to "seventh-year extensions" of H1B petitions. The Memo was directed to BCIS Service Center Directors, Regional Directors, the Office of International Affairs, the Bureau of Immigration and Customs Enforcement (BICE), and the Bureau of Customs and Border Patrol (BCBP). Earlier MurthyBulletin articles on this law include DOJ Bill Sent to President: Provisions Include H-1 Extensions and Important New Legislation Pending, both available on MurthyDotCom.

Previous AC21 Memos on H1B Extensions Still in Effect

The Yates Memo recognizes that the 21st Century DOJ Appropriations Act expands the class of H1B status holders who may extend their H1B status in one-year increments beyond the normal six-year limit. As an initial matter, Mr. Yates affirms that the formerly issued memos on the subject remain in effect. There were two prior memos, an INS January 29, 2001 Memo entitled "Interim Guidance for Processing H1B Applications for Admission as Affected by the American Competitiveness in the Twenty-First Century Act of 2002, Public Law 106-313" and the follow-up June 19, 2001 Memo, entitled "Initial Guidance for Processing H1B Petitions as Affected by the 'American Competitiveness in the Twenty-First Century Act' (Public Law 106-396)." (For a detailed analysis of each of these memos, see INS Instructs Inspectors on Travel and H1B Portability  and INS Finally Issues Its Initial Guidance on AC21 in June 2001, which can be found on MurthyDotCom.)

Broader Reach of 21st Century DOJ Appropriations Act

The 21st Century DOJ Appropriations Act amends AC21 to grant H1B status holders extensions beyond the normal six-year limit in cases of lengthy adjudication of either labor certifications or employment-based (EB) immigrant petitions (I-140). Under AC21, eligibility arises when 365 days or more have passed since the filing of both the labor certification and the I-140 petition or of the I-140 petition, alone. The 21^st Century DOJ Appropriations Act extended the benefit of being able to file H1B extensions beyond six years to those who merely filed a labor certification that has been pending for 365 days or longer. The Yates Memo provides that, in order for the person to benefit under the labor certification filing requirement, the individual must qualify on or after November 2, 2002.

H1B Extension Only Allowed after LC Pending for Over a Year

The Memo states that the H1B extension petition must have been filed after the 365 day-mark of the filing of the labor certification or I-140 had passed. Otherwise, the foreign national does not qualify for the one-year incremental extensions beyond the 6th year. This is an important clarification. Under this Memo it is not possible to file the H1B petition prior to the 365-day point while asking for approval for a future date, by which the 365-day point will have been reached. Further, Mr. Yates states that the request for the H1B extension of status must establish that the foreign national is in valid H1B status at the time that the H1B petition is filed with the BCIS. If the beneficiary is not in valid H1B status, the extension typically will not be approved. While it is generally well understood that extensions require that the person be in lawful status, the language of the law can certainly be read to allow for petition approval for additional one-year increments, even if the person is no longer eligible for an extension.

Under this disappointing interpretation, a foreign national whose 6th year of H1B eligibility ends five days before his/her labor certification has been pending for 365 days does not appear to qualify for the one-year incremental extension, as the person is unable to show s/he was in H1B status at the time s/he is eligible to file for the new H1B. A person in this situation would need to recapture any time s/he may have available, prior to filing the one-year extension. The law speaks in terms of eliminating the six-year limitation if the stated requirements are met. It also speaks of extensions being allowed in these circumstances. It had been hoped that the BCIS would interpret the law more broadly to allow for H1B petition approval, even if an extension of status in the U.S. was not possible. This would have allowed a person who reached the end of his/her six-year point to depart the U.S. and then return for additional time on H1B once the 365 days were reached.

What this means for MurthyDotCom and MurthyBulletin readers is that it is necessary to file the labor certification or the I-140 petition a month or so before reaching the fifth year in their H1B status. This enables them to file the H1B extension after they have reached the 365-day requirement, without cutting it too close. For example, now if the 365-day point is on the exact day that the I-94 expires, one cannot file the H-1 petition on the 360th day and request a start date at the 365-day point. Under the Yates Memo, it is now necessary to wait until 365 days have elapsed since the filing of the labor certification. If a person waited to file the LC until the last minute, for whatever reason, it could be disastrous given possibilities of human error, computer issues, illness, accidents, weather and overnight mail delivery concerns, etc.

H1B Extensions Approvable until the LC or I-140 is Finally Denied

The Yates Memo requires the BCIS to approve the H1B one-year incremental extensions until a final decision is made to deny the labor certification or I-140 petition or to grant or deny the foreign national's application for an immigrant visa or adjustment of status. If a labor certification is denied, an appeal may be filed within 35 days of the decision. The Yates Memo provides that a decision that has been appealed will not be considered by the BCIS to be a final decision until a decision is issued on the appeal. Accordingly, a labor certification denial that has been appealed does not sever the H1B status holder's ability to obtain a one-year incremental extension of H1B status. This indeed is a favorable interpretation of the law since it would enable the H1B employee to keep extending H1B status while the appeal is pending.

Family Members Eligible for H-4 Extensions beyond Six Years

The Yates Memo further asserts that derivative family members are eligible for H-4 status for the same period of authorized stay granted to the H1B status holder. In a particularly favorable interpretation that is in keeping with the BCIS' goal of maintaining family unity, Mr. Yates goes on to explain that a person who has held H1B status for a full six years, but has a spouse who is also in H1B status and eligible for one-year incremental extensions, may change his/her status to H-4 status under his/her spouse's H1B and be eligible for the one-year incremental extensions of H-4 status. While the H-4 extension is available, the H1B extension for that person would not be available unless s/he had his/her own, independent qualification for one-year incremental extensions.

Evidence of the Pending LC Acceptable to BCIS

The Yates Memo provides that BCIS will accept the following as proof the labor certification has been pending for 365 days or more: a document from the State Workforce Agency (SWA) notifying the employer, the employer's representative, the DOL, or the BCIS that a Form ETA-750, filed on behalf of the H1B beneficiary, has been pending 365 days or more; or a document from one of DOL's Employment and Training Administration (ETA) regional offices notifying the employer, the employer's representative, or the BCIS that a Form ETA-750, filed on behalf of the H1B beneficiary, has been pending 365 days or longer.

These documents must include the name of the employer, the date the labor certification was filed, the name of the foreign national, and the case number assigned to the labor certification. The Department of Labor (DOL) has consented to provide upon request the second document listed above in instances when the first document listed was never generated.

Substitution Beneficiary Enjoys H1B Extension Benefit!

In a particularly liberal construction of the law, Mr. Yates indicates that, if a labor certification, previously approved for another "green card" candidate but unused for that candidate, is now being used to support an I-140 petition for an H1B status holder, the date of filing of the original labor certification may be used for that H1B nonimmigrant to file for one-year incremental H1B extensions, as long as additional proof is submitted that the person has a pending or approved I-140 based on that labor certification. Under this interpretation, therefore, a person who is using a substituted labor certification that was filed more than 365 days prior, but whose employer filed the I-140 petition for the H1B employee only two months before the six-year H1B window expired, is now eligible for the one-year incremental extensions.

Filing Fees for H1B Extensions

The petitioning company must file an I-129, request the one-year extension under AC21, and pay the appropriate fees. While this will always include the (at the time of this writing) $130 processing fee, it additionally may include the (currently) $1000 H1B Nonimmigrant Petitioner "Training" Fee, if the Petitioner is not exempt or the petition is not at least the second petition for an extension for the beneficiary.

Conclusion

We appreciate Mr. Yates' efforts, in his new position at BCIS, to clarify these interpretations under the 21st Century DOJ Appropriations Act for H1B extensions. Although some aspects of the Yates Memo are not as favorable as we had hoped, it is helpful that BCIS has expressed an opinion and our clients may now rely on a consistent position that we can expect BCIS examiners to exercise in approving H1B extensions under the law.

We remind MurthyDotCom and MurthyBulletin readers that, although BCIS policy Memos generally are followed by examiners and the BCIS in determining many complex issues under existing law, they do not have the same force of law as that of actual laws and regulations. So, there is always the possibility that the interpretations in the Yates Memo may change if and when regulations are finally issued. The following of the interpretation in the Yates Memo, however, likely would be considered a "good-faith" interpretation of the law and minimize the risks to one relying on these interpretations.