H-1B Extensions beyond the 6th year

There has been ongoing guidance on the filing of H-1B extensions beyond six years, the most recent from Donald Neufeld in May 2008. Below is a summation of the two provisions allowing for extensions beyond the 6th year.

Section 106(a) Extensions (1 yr increments)
USCIS may grant an extension of stay under AC21 §106(a) if evidence is provided that:

1. A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
2. The labor certification was filed with DOL or the I-140 petition was filed with USCIS at least 365 days prior to the date the alien beneficiary will have exhausted 6 years of H-1B status in the United States pursuant to 214(g)(4); and
3. The extension and I-129 petition are otherwise approvable.

Section 104(c) Extensions (3 yr increments)
An alien is eligible for an extension of H-1B status if:

1. The alien is the beneficiary of an I-140 petition, and
2. Would be eligible to be granted immigrant (lawful permanent resident) status but for the application of per country limitations applicable to immigrants.

Despite the title of AC21 §104(c), referring to "one-time" protection, USCIS may grant such H-1B extensions, in a maximum of three year increments, until such time as the alien’s application for adjustment of status has been adjudicated.

Ricky Malik, Attorney at Law

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