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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AC21 also provides job flexibility for certain aliens who have a pending adjustment of status application for more than days.

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. Leave a Reply Cancel reply Your email address will not be published. Actually, the correct term is H status. Can a spouse seek an H-1B extension beyond meml years when the other spouse is the yatrs of a timely filed labor certification?

He is a frequent speaker and writer on various immigration related topics.

USCIS Memo On Remainder Time And Other H Time Determinations

This memorandum re-issued prior guidance provided in the Yates Memo without change except to clarify the answer to questions 1 in Section 1. With AC21eligible H1B workers can now extend their status beyond the six-year limitation without having to leave the U. 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.

American Competitiveness in the 21st Century Wc21 AC21 provides two important provisions by allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit. Unfortunately, the Neufeld Memo indicates that the I petition must be approved, although this is contrary to the statute.

This policy is less controversial. 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 gates approved but provided a mechanism for that approval even though the alien was no longer with the employer who had filed the I petition.

Leave a Reply Want to join the discussion? It remains to be seen whether the Nebraska and Texas Service Centers, which have sole jurisdiction over I petitions, will be amenable to follow the Yates Memo policy and allow beneficiaries who have ported to be able to respond to a request for evidence on an I petition so as to facilitate its approval. If a request for additional evidence RFE is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to ac211 to resolve the issue.


Immigration: AC21 and H1B Extension Beyond Six-Year Limitation

Then adjudicate the yafes of status application to determine if the new position is the same or similar occupational classification for I portability purposes. Your email address will not be published. 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.

If the petition is approvable but for an ability to pay issue or any yares issue relating to a time after the filing of the petition, approve the petition on its merits.

But keep in mind that a labor certificate now has expiration dates attached, and will become yatds if I ,emo not filed within six months of LC approval. Feel free to contribute! In this section we will discuss the details of how H1B holders can take advantage of AC The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo.

Under that provision, so long as a labor certification was filed days prior the jates of the H-1B sixth year, the H-1B status could be extended in one-year increments. In fact, it states that Al Wazzan is consistent with the earlier guidance.

The Neufeld Memo emphasizes that the beneficiary must not have ceased to be employed by a cap-exempt employer in order to be eligible for a concurrent H-1B petition that is filed by cap-subject employer.

Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. If you do not need LC, your process starts when your employer files I for you.

USCIS Interim Guidance On Processing Benefits Under AC21

When a response is received, and if the petition is approvable, following the procedures in part A above. Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year limit. 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 employer.

In any event, the need jemo make such an argument will be obviated if the USCIS re-institutes premium yyates for I petitions, thereby allowing for swifter approvals. If it is discovered that a beneficiary has ported off of an unapproved I and I that has been pending for days or more, the following procedures should be applied: Another benefit of AC21 for 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.


There is no AC form, petition or application. Labor certifications that are approved on or after July 16, are valid for calendar days. 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?

Post 6th-year H-1B extensions are filed the same way as regular H-1B Extensions, with the addition of evidence to support AC21 memmo as a pending labor certification application.

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.

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. So if an approved labor yaes wasn’t used in an I petition within days, it would no longer be able to support an H1B post 6th-year extension.

USCIS Yates Memo On Processing Benefits Under AC21 | NAFSA

This provision can be meo upon even if the labor certification was filed within the days of the sixth year in H-1B status. Unfortunately, the Neufeld Memo does not address this issue. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension.

Your green card process begins when a labor certification LC application is filed on your behalf.

H-1B visa status is valid for a maximum of six years: So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status. 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. This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to.

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. However, the time you spent outside the U.

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