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Post-Sixth Year H-1B Extension and Portability Issues

Many foreign nationals in H-1B status apply for permanent residence in the United States. However, because of long government delays and per-country visa limitations, only a few are able to get their green cards before the end of the six-year maximum H-1B period.

Since it is not an option for them to remain outside the United States for at least one year to restart the 6-year H-1B period, what most H-1B workers do is apply for a post-sixth year extension of their H-1B status.

Under the American Competitiveness in the Twenty-First Century Act (AC21), an extension of H-1B status after the 6th year is allowed under either of two circumstances.

First, if the foreign national is the beneficiary of a labor certification or an I-140 immigrant worker petition filed at least 365 days before the expiration of the six year period, a one-year extension is available. This addresses the delays due slow government processing of the labor certification application and the I-140 petition.

Second, if the foreign national is the beneficiary of an approved I-140 petition but cannot adjust status because of per-country visa limits, he/she can apply for a three-year extension of H-1B status. This is helpful for heavily backlogged employment-based third preference category and second preference category with respect to nationals of China and India.

In some cases, the foreign national finds another employer who is willing to sponsor him/her for H-1B employment. Assuming that his original H-1B petitioner has filed a labor certification application by the fifth year, can the new employer file an H-1B petition for the foreign national and extend his/her H-1B status beyond the six-year period?

Under AC21 regulations, the petitioner in the post-sixth year H-1B extension does not have to be the same employer who filed the labor certification or I-140 on behalf of the H-1B worker. A seventh year H-1B extension is permitted as long as the foreign national is the beneficiary of any labor certification or immigrant petition

For example, let’s say Mark is working for Company A as a Marketing Manager. His H-1B status will reach its sixth year on March 31, 2012. Company A filed a PERM labor certification application for Mark on February 15, 2011. Mark then gets an offer from Company B in September 2011.

If Company A’s labor certification application is still pending, Mark can transfer to Company B, which must file a new petition by March 31, 2012 or while Mark is in a “period of stay authorized by the Attorney General” (for instance, Company B’s petition was filed after March 31, 2012 but while Company A’s 7th year H-1B extension for Mark was pending).

This assumes that Company A has not withdrawn the labor certification. In order for Mark to continue to pursue permanent residence, Company B should conduct its own recruitment and file its own PERM labor certification application on Mark’s behalf as soon as possible. After its PERM application is certified, Company B should file an I-140 petition and use premium processing if possible.

Another common portability issue relates to the timing of transfer. Under AC21, the H-1B worker may commence employment upon the filing of the H-1B petition.

Let’s say Anne works for Company C, with H-1B status valid until April 30, 2012, but she gets a job offer from Company D in early April 2012. If Anne immediately accepts Company D’s offer and Company D files an H-1B petition on April 15, 2012 and it is received by the USCIS on April 18, 2012, Anne can begin working for Company D on April 19, 2012.

If for some reason Anne does not begin working for Company D until May 15, 2012, she can do so even if it is past her original H-1B period and even before approval of her new H-1B petition.

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