May 2, 2002

INS Advocates a Relaxed Reading of Seventh-Year Extensions

In correspondence, the INS has agreed to an "alien-based" reading of Section 106(c) of the American Competitiveness in the 21^st Century Act. This provision provides for additional extension of H-1B status for foreign nationals in the US who have had both a labor certification filed before the end of the fifth year in H-1B status and an immigrant visa petition filed before the end of the sixth year. INS has said in this exchange of correspondence that they will accept (for the time being) any labor certification and any immigrant visa petition filed on behalf of the employee, even if not filed by the current employer, in the narrow situation where the current employer is also seeking permanent residence and the employee will ultimately receive the green card. Efren Hernandez, Director of Business and Trade Services, stated that "the labor certification application and Form I-140 need not relate to the alien’s current employment situation." However, it was also noted that this would be reviewed during the rulemaking process in which INS is currently engaging on this and other issues.

Persons nearing the end of their stay in H-1B status are advised to discuss their situation with their counsel before making decisions.