RE: Donald Neufeld's AC-21 Supplemental Memorandum dated 05.30.2008

A GIST of New CIS Memo on processing of I-140s and H-1Bs under AC21

1. The CIS has announced that an extension of H-1B status under AC21 §106(a) may not be granted if, at the time the extension request is filed, the labor certification has expired by virtue of not having been timely filed in support of an EB immigrant petition during its 180 day validity period.

2. Form I-140 petition must be approved in order for a request for portability under §106(c) AC21 will be approved.

3. The limitation on the total period of H-1B status does not apply to H-1B workers when, as of the date of filing the extension request:

• 365 or more days have passed since the filing of any application for labor certification, Forms ETA-750 or ETA-9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is unexpired or has been timely filed with an EB petition within the labor certification’ s validity period; or
• 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or
• The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.

4. Assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year if evidence is provided that:

• A labor certification is unexpired at the time of filing of the Form I-129 H-1B extension petition; and
• 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
• The extension and the I-129 petition are otherwise approvable.

5. USCIS will grant, in certain instances, extensions that request time remaining towards the 6-year maximum under 214(g)(4) and additional time allowed under AC21 § 106(a).

6. 7th year extension requests under AC21 §106(a) may be made in a petition that also contains a request for an extension of stay that reaches the maximum 6 year limit.

7. An AC21 H-1B extension will not be granted for more than a three year period of time. Also, if the alien beneficiary would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, then the extension of stay request cannot be granted.