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is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is still valid and/or has been timely filed with an EB petition within the labor certification’s validity period; or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:

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 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.