Law Offices of Stuart J. Reich, PLLC

Practice Limited to Immigration & Nationality Law

11 Broadway, Suite 615
New York, NY 10004

(212) 430-6582 phone
(212) 430-6583 facsimile

Post-Sixth Year H-1B Extensions Under AC21 now Threatened by the Administration

According to several published reports, the Administration is considering a new interpretation of the post-sixth-year extension provisions contained in the American Competitiveness in the 21st Century Act (“AC21”) which would disallow extensions of H-1B periods of stay beyond the sixth year.

This planned interpretation would not impact extensions before the six-year limit had been reached, extensions before the six-year limit that are requested as part of amendment or change-of-employer petitions, or recapture of time spent abroad during the initial six years.

AC21 permitted extensions beyond the six years normally permitted to H-1B holders in two circumstances:

  • Where either a permanent residence case was on file before a date 365 days in advance of the fifth year, where either a PERM labor certification or an I-140 Immigrant Visa Petition was still on file and pending (a one year extension), OR
  • Where an I-140 Immigrant Visa Petition is already approved (with or without prior approval of a PERM labor certification) but where an immigrant visa is not yet available for the priority date of the petition given the individual’s country of birth (a three-year extension).

The language of AC21 stated that such extensions “may” be granted – the administration is apparently in the process of implementing an interpretation where USCIS can simply choose not to grant these extensions will try to stop granting extensions of H-1B status past the sixth year under the American Competitiveness in the 21st Century Act (“AC21”) for people with green card cases in process.
This would therefore impact jobs that have often been long-held, with efforts made to keep the H-1B holders here permanently: high-value, high-salary, experienced jobs.