INS Comments on Eligibility for H-1B 7^th Year Extensions

Under AC21, provision 106(a) allows H-1B holders who are reaching their maximum period of stay of six years in H-1B status to extend their status in one-year intervals they are applying for permanent residence through labor certification and meet certain criteria. At first glance, this provision appears very beneficial to H-1B holders who are running into their six-year cap and have not completed their application for permanent residence status through labor certification because of processing backlogs.

However, on closer examination, the provision benefits only those lucky individuals who have managed to make it out of the Department of Labor backlogs and 1) have filed an I-140 or an I-485; and 2) 365 days have passed since the filing of a labor certification application or I-140. Those who get left out of the relief offered by these provisions are those poor individuals whose labor certifications have been pending for 365 days but remain un-adjudicated and therefore can not file an I-140 based on the labor certification. Since the INS has yet to release any type of regulations and gives little guidance on interpreting AC21, individuals in the immigration field have been pondering scenarios that could allow those individuals who are unable to file I-140s based on their current labor certifications because they are still pending, to take advantage of the 7^th year extension.

In recent correspondence with the INS, an attorney asked what would happen if an individual had a labor certification pending for his current employer for the allotted time (which had not yet been approved so they couldn’t file an I-140) but also had an approved labor certification and pending I-140 from a previous employer. In this instance, the practioner wanted to know, would the alien still qualify for a 7^th year extension? In his response, Efrain Hernandez III, Director, Business Trade and Services, said it appears that provision 106(a) of AC21 would allow this individual to apply for a 7^th year extension based on the described scenario. Mr. Hernandez said "the language of AC21 appears to allow the employer of an H-1B nonimmigrant to seek the extension of stay beyond the 6^th year as long as the alien is the beneficiary of ANY (emphasis added) labor certification application or any immigrant worker petition. The labor certification application and Form I-140 do not need to relate to the alien’s current employment situation." Mr. Hernandez goes on to note that this will be further explored in the rulemaking process. Therefore, while this strategy is valid according to the letter, there is no guarantee that this interpretation will necessarily be reflected in the final rule.

Under this interpretation, which the INS has indicated is acceptable, it appears individuals who have labor certifications pending but can not file an I-140 or I-485 based on it could also consider other methods to filing an I-140. Individuals may want to consider exploring whether they are eligible to apply for any other immigrant category which allows the filing of an I-140, such as an Outstanding Researcher or Extraordinary Ability petition, in order to take advantage of the 7^th year extension provision. However, it is important to note that individuals should contact immigration counsel to discuss these options. Finally, attempting to secure a 7^th year extension by filing frivolous I-140 petition may have adverse immigration consequences and should not be pursued.

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