USCIS has released a May 12, memorandum interpreting a Yates notes that prior AC21 guidance memoranda remain in effect and the. Mr. Yates indicates that the proposed regulation may be more restrictive than the memo. The USCIS has not even issued proposed AC This issue is addressed in a USCIS memo discussed in our May 27, article, Yates May Memo on AC21 and Is, as well as our.
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The Neufeld Memo allows for additional time to acquire new H-1B employment and remain eligible to apply for change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the jemo.
In this section we will discuss the details of how H1B holders can take advantage of AC Or, if your I has already been approved but your priority date is not current, i. Post 6th-year H-1B extensions are filed the same way as regular H-1B Extensions, with the addition of evidence to support AC21 such as a pending labor certification application. He is a frequent speaker and writer on various immigration related topics.
Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I portability purposes.
Review the pending I petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within days.
If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension.
So if an approved labor certification wasn’t used in an I petition within days, it would no longer be yqtes to support an H1B post 6th-year extension. AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum limit of six years while the permanent residency process has not yet been completed. The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo.
USCIS Interim Guidance On Processing Benefits Under AC21
Actually, the correct term is H status. Although the Yates Memo suggested that an alien can port off an unadjudicated I, it impliedly concluded that porting could occur only if the I was approved but provided a mechanism for that approval even though the alien was no longer with the employer who had filed the I petition.
Another benefit of AC21 jemo H1B workers is that in case of “H1B transfer,” they can start working for the new employer upon filing of the new H1B petition, i. Labor certifications that are approved on or after July 16, are valid for calendar days. If a request for additional evidence RFE aytes necessary to yztes a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue.
USCIS Yates Memo On Processing Benefits Under AC21 | NAFSA
However, the time you spent outside the U. Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute. Note that a person’s eligibility for 3-year extension beyond the 6th-year limit is based on visa number availability at the meom of filing H1B petition, not on a later date when the extension is actually reviewed.
Leave a Reply Cancel reply Your email address will not be published. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. Emmo green card process begins when a labor certification LC application is filed on your behalf. If it is discovered that a beneficiary has a2c1 off of an unapproved I and I that has been pending for days or more, the following procedures should be applied: Your email address will not be published.
NEW INTERPRETATIONS ON AC21 | Cyrus D Mehta & Partners PLLC
You may extend your H1B status annually in one-year increments if your green card process was started at least days prior to the day when you reach the six-year limit. Your six-year total includes all the time you held H1B’s for all employers you worked for, as well as any time you were in H4 status.
This policy is less controversial. In other words, while an alien is the beneficiary on an H-1B petition approved through a cap-exempt employer, he or she can also be the beneficiary of an H-1B petition filed concurrently through a non-exempt employer. When a response is received, and if the petition is approvable, following the procedures in part A above. There is no AC form, petition or application.
In any event, the need to make such an argument will be obviated if the USCIS re-institutes premium processing for I petitions, thereby allowing for swifter approvals.
Under that provision, so long as a labor certification was filed days prior the expiration of the H-1B sixth year, the H-1B status could be extended in one-year increments.
USCIS Memo On Remainder Time And Other H Time Determinations
But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I is not filed within six months of LC approval. Similarly, for beneficiaries with approved I petitions, USCIS will grant H1B extensions – in a maximum of 3-year increments – until a final decision is made with regard to their I applications. If the USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position after a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available.
Can a spouse seek an H-1B extension beyond 6 years when the other spouse is the beneficiary of a timely filed labor certification?
Feel free to contribute! Leave a Reply Want to join the discussion? As long as your LC was filed more than days before your completion of six years in H status, you are eligible for 7th-year-extension and beyond. If you do not need LC, your process starts when your employer files I for you.
This article highlights some of the important interpretive guidance in the Neufeld Memo, but also advises practitioners to advocate positions on behalf of their clients that have not been addressed in the Neufeld Memo. This memorandum re-issued prior guidance provided in the Yates Memo without change except to clarify the answer to questions 1 in Section 1.
After six years, an H-1B temporary worker must stay outside the U. If the H-1B alien beneficiary ceases to be in the employment of a cap-exempt employer, then he or she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary. In fact, it states that Al Wazzan is consistent with the earlier guidance. Unfortunately, the Neufeld Memo does not address this issue. Can an alien exercise portability after the adjustment of status application has been pending for more than days but the I petition either remains unadjudicated or has been denied?
This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U.