H1B Extensions under AC21 may be Filed Earlier!
Posted Aug 06, 2004; updated Aug 24, 2004
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[EDITOR'S NOTE : August 20, 2004, the USCIS corrected their earlier report, stating that the change in policy and procedure below is incorrect. They clarified that there is no change in the procedures for filing H-1 extensions beyond the six-year limitation. The April 24, 2003 Memo on this topic remains in effect and the procedures outlined in our May 9, 2003 article remain correct and unchanged. See, H1B Extensions Under the 21^st Century DOJ Appropriations Act. More details are forthcoming.]
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In a July 2004 Service Center Operations Teleconference, the USCIS modified its earlier position on an issue related to the timing of filing an H1B extension after a person has completed 6 years on H1B status. The latest position of the USCIS is that H1B petitions may now be filed in advance of the date a Labor Certification (LC) or the I-140 petition has been pending at least 365 days, as long as the start date of the H1B extension is beyond the one-year point. Also, the USCIS reiterated its earlier position that an H1B may only be filed 6 months in advance of its expiration date.
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As regular MurthyDotCom readers may recall, the American Competitiveness in the 21^st Century Act of 2000 (AC21) and the 21^st Century Department of Justice Appropriations Act of 2001 (DOJ Act) allow an H1B employer to file incremental one-year H1B extensions annually after the completion of six years on H1B status. To qualify, an employee must have previously filed either an LC or an I-140 petition and that application or petition must have been pending for at least 365 days. The USCIS had previously stated in a memorandum dated April 24, 2003 that H1B extensions beyond the six years could not be filed until the LC or I-140 had been filed and pending at least 365 days. The reasoning was that a person must be eligible for a benefit when the request for that benefit is sought. This is discussed in our May 9, 2003 article, H1B Extensions under the 21^st Century DOJ Appropriations Act, available on MurthyDotCom.
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Under the change in policy announced in July 2004, it is permissible for an employer to file any H1B extensions after 6 years on H1B status, even before the LC or I-140 petition has been pending for at least 365 days. The start date requested on an H1B extension must be after the time when the LC or I-140 petition has been pending for over a year and cannot be made more than six months in advance.
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This is helpful and makes sense all around since the H1B employee would not be eligible for the H1B extension approval to be effective beyond six years until the employee's LC or 1-140 petition has been pending for at least 365 days. This interpretation of AC21 and the DOJ Act should help one avoid the need for a last minute filing, previously caused by the sometimes narrow window between the time when one qualified for the H1B seventh-year extension and when the person's H1B status would otherwise expire.