H-1B Extensions: Do I qualify under AC21 §104(c) or §106(a)?

In October of 2000, Congress passed the American Competitiveness in the 21st Century Act (“AC21”). On October 18, 2000 the President signed the bill and most of the provisions became effective immediately. AC21 has two key provisions that pertain to the ability of an H-1B nonimmigrant to obtain extensions in H-1B worker status if – the Green Card process was initiated on their behalf prior to their 6th year as an H-1B nonimmigrant.

§104(c) provides for three (3) year extensions of H-1B Worker status beyond the 6th year, if:
• the H-1B nonimmigrant has an I-140 petition which has been approved but for the unavailability of visa numbers due to the per country limitations, the Applicant is unable to Adjust Status to Permanent Resident.

§106(a) provides for one (1) year extensions of H-1B Worker status beyond the 6th year, if:
• a labor certification has been filed on behalf of the Applicant, and 365 days or more have elapsed since the filing of the labor certification;

•an I-140, Immigrant Petition for Alien Worker has been filed on behalf of the Applicant, and 365 days or more have elapsed since the filing of the I-140.

USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

To further discuss eligibility for H-1B extensions beyond the 6th year pursuant to AC21 §104(c) and/or §106(a), please contact our office.