New Filing Window Limits Availability of Yearly AC21 106 Extensions

January 06, 2017

 

Do you have any H-1B workers who are beneficiaries of approved I-140 immigrant visa petitions and who have not filed for adjustment of status or an immigrant visa within 1 year of a visa number becoming available to them?

If so, a regulation effective January 17, 2017 will make such individuals ineligible for AC21 106 "lengthy delay" extensions of H-1B status beyond six years. AC21 106 provides that DHS “shall extend” H-1B status in one-year increments, for beneficiaries whose labor certification or I-140 was filed more than a year ago, regardless of whether their country is oversubscribed. Current DHS regulations for this provision are at 8 CFR 214.2(h)(13)(iii)(D).

8 CFR 214.2(h)(13)(iii)(D)(10)

(10) Limits on future exemptions from the lengthy adjudication delay. An alien is ineligible for the lengthy adjudication delay exemption under paragraph (h)(13)(iii)(D) of this section if the alien is the beneficiary of an approved petition under section 203(b) of the Act and fails to file an adjustment of status application or apply for an immigrant visa within 1 year of an immigrant visa being authorized for issuance based on his or her preference category and country of chargeability. If the accrual of such 1-year period is interrupted by the unavailability of an immigrant visa, a new 1-year period shall be afforded when an immigrant visa again becomes immediately available. USCIS may excuse a failure to file in its discretion if the alien establishes that the failure to apply was due to circumstances beyond his or her control. The limitations described in this paragraph apply to any approved immigrant visa petition under section 203(b) of the Act, including petitions withdrawn by the petitioner or those filed by a petitioner whose business terminates 180 days or more after approval.

(AC21 contains two separate provisions for extending H-1B status beyond six years. 8 CFR 214.2(h)(13)(iii)(D)(10) only affects only AC21 106 1-year extensions described above. It does not affect eligibility for 3-year H-1B extensions under AC21 104(c), which provides that DHS “may grant” extensions beyond six years for three years at a time if the beneficiary's country is oversubscribed. AC21 104(c) regulations are at 8 CFR 214.2(h)(13)(iii)(E)).

The one year filing limit for eligibility for one-year extensions under AC21 106 is part of the AC21 regulation at 81 FR 82398 (November 18, 2016), which became effective on Tuesday, January 17, 2017.

Since this deals with questions of immigration strategy, individuals who may be impacted should be encouraged to seek the advice of an immigration lawyer who can help them sort through options. Options they may wish to consider with an immigration lawyer might include, for example:

  • Applying for adjustment of status soon, making sure to file the I-485 concurrently with an I-765 and I-131, so that an EAD/Advance Parole document is approved before the expiration of their current H-1B status.
  • File for IV consular processing now, if the timeline to get an immigrant visa is faster than the timeline for getting an adjustment EAD/AP.
  • Consider nonimmigrant options while an adjustment or IV visa is pending, for example:
    • Explore with an immigration lawyer whether DHS could exercise its discretion under 8 CFR 214.2(h)(13)(iii)(D)(10) to "excuse a failure to file in its discretion if the alien establishes that the failure to apply was due to circumstances beyond his or her control."
    • Explore with an immigration lawyer the feasibility of acquiring another immigration status
     

These are of course legal strategies that should be agreed upon by the H-1B worker and his immigration lawyer after weighing all the options and risks.