Congress provided exemptions from maximum stay rules for certain H-1B beneficiaries who were being sponsored by employers for permanent residence and were subject to long delays either for government processing or for visa numbers.

Section §104(c) of American Competitiveness in the 21st Century Act (AC 21) allows the foreign national to obtain an extension of H-1B status beyond the six-year maximum period under the following conditions:

USCIS interprets AC21 §104(c) as only applicable when an alien, who is the beneficiary of an approved I-140 petition, is eligible to be granted lawful permanent resident status but for application of the per country limitations.

Any petitioner seeking an H-1B extension on behalf of an H-1B alien beneficiary pursuant to §104(c) of AC21 must thus establish that at the time of filing for such extension, the alien is not eligible to be granted lawful permanent resident status on account of the per country immigrant visa limitations.

USCIS will accept a copy of the H-1B alien beneficiary’s Form I-140 petition approval notice which shows that an immigrant visa is not immediately available to him or her based on the approved petition’s priority date as evidence of the H-1B alien beneficiary’s eligibility for an extension of H-1B status under the provisions of §104(c) of AC21.

Please note that USCIS will review the Visa Bulletin that was in effect on the date of filing of the Form I-129 petition in which a request for §104(c) of AC21 H-1B extension request is made.

If the H-1B beneficiary is shown to be ineligible to be granted lawful permanent resident status on account of the per country visa limitations, then the H-1B extension request under the provisions of §104(c) of AC21 may be granted for a three year period of stay.

Exemptions applies to All the Beneficiaries, Need Not To Be in H-1B Status: Congress did not restrict eligibility for additional periods of admission beyond the maximum six years to only requests for extension of stay. The language of Section 106 & 104 (c) of AC21 did not restrict to only extensions. A qualified H-1B beneficiary need not be in H-1B status in order to benefit from sections 106 and 104(c) of AC21. The H-1B beneficiary may obtain such additional periods of H-1B admission through a petition to change status from another nonimmigrant classification, or through H-1B visa issuance at a U.S. consulate and admission from abroad.

Exemptions to Six Year Time Limit based on pending or approved Labor Certifications or Pending Employment Immigrant Petitions
Congress provided exemptions from maximum stay rules for certain H-1B beneficiaries who were being sponsored by employers for permanent residence and were subject to long delays either for government processing or for visa numbers.

Section 106(a) of American Competitiveness in the 21st Century Act (AC 21) allows the foreign national to obtain an extension of H-1B status beyond the six-year maximum period under the following conditions:

365 days or more have passed since the filing of any application for labor certification, Forms ETA-750 or ETA-9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is still valid and/or has been timely filed with an EB petition within the labor certification’s validity period; or

365 days or more have passed since the filing of an EB immigrant petition

In short, the USCIS is required to grant the extension of stay of such H-1B nonimmigrant in one-year increments until a final decision is made to:

(i)Deny the application for labor certification;
(ii)If the labor certification is approved, to revoke the approved labor certification;
(iii)Deny the EB immigrant petition; or
(iv)Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If the application for labor certification is denied, the employer is advised that there is a period of time within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA). If the employer does not file an appeal within the required timeframe, the denial becomes the final decision of the Secretary of Labor. USCIS will not consider a DOL decision to be final until either the time for appeal has run and no appeal has been filed or, if an appeal is taken, the date a decision is issued by BALCA. Therefore, the labor certification will still be considered “pending” while the denial of the labor certification application may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay.

Most importantly, USCIS also will not grant an extension of stay under AC21 §106(a) if the approved labor certification was not filed in support of an EB immigrant petition prior to its expiration date as specified by DOL. The reason for this is that the filing of an immigrant petition with an expired labor certification would result in the automatic denial of that EB immigrant petition, which in turn, acts as a statutory bar to the granting of an extension beyond the 6-year maximum.

Portability Option for Original Beneficiary On Pending Labor Certification: Since the legislation and the federal regulations require only “any application for labor certification” to be pending for more than 365 days, an extension of H-1B can be obtained by a different petitioner, provided that the new petitioner submits evidence that the beneficiary is using the labor certification to obtain status as an EB immigrant.

For example, if employer A submitted an application for labor certification on behalf of the H-1B beneficiary, then Employer B can submit the petition for extension of H-1B beyond the sixth year based on pending labor certification for more than 365 days.