Does AC21 Limit Availability Of Post-6th Year H-1B Status To Those Currently Maintaining H-1B Status?
Congress passed the American Competitiveness in the Twenty First Century Act (hereinafter, "AC21") in October 2000, after the high tech boom of the 1990s and before September 11, 2001. AC21 reflects the openness to immigration during those years, and we are now left with its benefits. Unfortunately, no regulations have ever been implemented to interpret AC21's provisions. All we have as guidance are administrative memoranda leaked from USCIS, which are not binding authority. One of many unresolved questions about AC21 is whether sections 104(c) or 106(a) permit an alien to obtain a 7th or subsequent year of H-1B status when he is currently either outside the United States or in a status other than H-1B.
Section 104(c) of AC21 states that it permits a post-6th year H-1B "extension" in three year increments where certain conditions are met. It states:
Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who-- (1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and (2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs, may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.[Emphasis added].
USCIS has interpreted this to mean that H-1B status can be extended past the 6th year in three year increments, where (1) an I-140 petition has been approved on the beneficiary's behalf; and (2) the beneficiary is unable to obtain permanent residence because a visa number is unavailable. 
USCIS has never addressed in any memoranda whether AC21 § 104(c) applies only to those currently in the United States maintaining H-1B status; or whether there are cases where people who are outside the U.S. or in the U.S. in a status other than H-1B can obtain a post-6th year H-1B. AC21 § 104(c) is ambiguous in this regard because the term "extension" has multiple meanings in immigration law. On the one hand, an "extension" can refer to an "extension of stay." Immigration regulations found at 8 C.F.R. § 214.1(c)(4) govern extensions of stay, and make it clear that, with certain exceptions, an "extension" is only available where the applicant is in the U.S. maintaining his status, and files the request for extension of stay prior to expiration of his previously authorized status.  If the word "extension" in AC21 104(c) refers to an "extension of stay," then it is possible to infer that 104(c) only applies to those who are currently in the U.S. and who are maintaining H-1B status.
On the other hand, the word "extension" in AC21 § 104(c) could also refer to an "extension of visa petition validity." 8 C.F.R. § 214.2(h)(14) states that Form I-129, which is filed to request an extension of H-1B status, simultaneously request extension of visa petition validity. 8 C.F.R. § 214.2(h)(15)(i) goes on to clarify, "Even though the requests to extend the petition and the alien's stay are combined on the petition, the director shall make a separate determination on each." Thus, an alien who wishes to apply for both an extension of stay and an extension of visa petition validity at the same time must be physically present in the U.S. and maintaining H-1B status in order to receive both. However, an H-1B petition extension could be filed for an alien who (1) was previously granted H-1B status; (2) that previous H-1B petition has not yet expired; but (3) the alien is not physically present in the United States.
For example, say Company A filed an H-1B petition for Mr. Smith on October 1, 2003, and it was approved with validity dates of 10/1/03-10/1/06. Also assume that 10/1/06 will mark the end of Mr. Smith's 6th year in H-1B status. However, Company A has filed an I-140 petition on Mr. Smith's behalf which has been approved, and Company A has no intention of revoking that approved petition. Before Company A files the H-1B petition requesting extension of Mr. Smith's status, Mr. Smith is called away to a family emergency abroad. Thus Company A files the H-1B petition requesting a three-year extension of Mr. Smith's status based on AC21 104(c), and also requesting that notification of the petition approval be sent to the U.S. Consulate in Mr. Smith's home country. The petition is filed prior to expiration of Mr. Smith's previous H-1B and requests "extension of visa petition validity;" however, it does not request an "extension of stay" for Mr. Smith because Mr. Smith is not currently in the United States. If the word "extension" in AC21 § 104(c) refers to "extension of stay," it means that § 104(c) allows 3-year H-1B extensions only for those physically present in the U.S. and maintaining H-1B status. But if "extension" refers to "extension of visa petition validity," then 104(c) can be used by aliens in Mr. Smith's situation. The term used in § 104(c) is "extension of such nonimmigrant status," which uses neither of the terms of art used in USCIS regulations and could feasibly mean either one.
While AC21 104(c) arguably applies to aliens who are outside the U.S., it does not appear to apply to aliens who are in the U.S. in a status other than H-1B. An alien in another status does not have an H-1B petition to extend; nor would he be requesting an "extension of stay" under 8 C.F.R. § 214.1. Instead, he would be requesting a "change of status" under 8 C.F.R. § 248.
If AC21 § 104(c) is ambiguous, § 106(a) and (b) are far worse. AC21 § 106(a) and (b), as amended by the 21st Century Department of Justice Appropriations Authorization Act, state:[Emphasis added.]
In short, § 106(a) and (b) permit an indefinite number of one-year extensions of H-1B status past the traditional six-year maximum, where either a labor certification or I-140 were filed on the beneficiary's behalf at least 365 days ago. What is unclear is whether 7th- and subsequent year H-1Bs are available for aliens currently either outside the U.S., in the U.S. in another nonimmigrant status, or in the U.S. but out of status.
Section 106(a), taken by itself, seems to make 7th- and subsequent year H-1Bs available regardless of whether filed as an extension of stay, change of status, or request for new or continued employment for someone abroad. It simply waives application of INA § 214(g)(4) to anyone who had a labor certification or I-140 filed on his behalf at least 365 days ago. INA § 214(g)(4) is the section of the Act limiting H-1B status to a maximum of six years. It states:
In the case of a nonimmigrant described in section 101(a)(15)(H)(i)(b), the period of authorized admission as such a nonimmigrant may not exceed 6 years.If INA § 214(g) doesn't apply, then aliens are permitted indefinite H-1B status. However, AC21 § 106(b) appears to limit this waiver. It states that such extensions of H-1B status shall only be granted in one-year increments (rather than the three-year extensions normally permitted for H-1Bs). But § 106(b) does more than this: it says an "extension of stay" shall be granted to those who qualify under § 106(a)'s requirements. Unlike AC21 § 104(c), § 106(b) actually uses the term of art "extension of stay," from which the inference can be drawn that the alien is required to be in the United States and in H-1B status in order to reap the benefits of AC21 § 106(a). However, it is not at all clear how §§ 106(a) and (b) are to be read together. The meanings of the two subsections conflict with each other. Subsection (a) states it applies to, "any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b)." This is a broad group of individuals including those currently in the U.S. in another nonimmigrant status; those out of status; and those abroad. But subsection (b) says § 106(a) applies only to those requesting an "extension of stay." This is a narrow group of people including only those currently in the U.S. in H-1B status requesting extension of stay. In effect, subsection (b) says that subsection (a) says something that it doesn't; hence, the ambiguity.
Our office's experience in filing H-1B petitions indicates that USCIS decisions on this issue are anything but consistent. In a recent case, one of our clients applied for an 8th year extension under § 106(a) while the beneficiary was outside the U.S. USCIS issued a Request for Additional Evidence (RFE) on the case. The RFE stated that it in order to take advantage of § 106, the beneficiary is required to be in the U.S. and maintaining H-1B status. However, in another recent case, adjudicated by the same service center, the H-1B beneficiary had already been in H-1B status for 8 years based on AC21 § 106(a) extensions, but had changed status to H-4 as his wife's dependent because he was temporarily out of work. However, the same company re-hired him a few months later and filed a new H-1B petition invoking AC21 § 106(a) and requesting a 9th year in H-1B status. The petition was immediately approved without RFE. It is unclear whether USCIS, or even individual service centers have taken a firm stance on whether they will grant AC21 § 106(a) extensions for beneficiaries who are outside the U.S. or in the U.S. in another status, or even in the U.S. and out of status.  However, in cases where options are limited, it is worth the argument that AC21 §§ 104(c) and 106(a) permit post-6th year H-1B status even for those who are not currently in the U.S. or are not currently maintaining H-1B status.
There is one option that can assist many individuals in avoiding this murky area of AC21. In October 2005, USCIS issued a memorandum clarifying its policy on granting recapture of time spent outside the United States while in H-1B (or L-1) nonimmigrant status.  The memo confirms that it is now USCIS policy to allow H-1B and L-1 status holders to recapture any time spent outside the United States while in status. In order to recapture time, one must provide documentary evidence of each day spent outside the United States while in H-1B status. Examples of such documentation include, but are not limited to, flight ticket stubs, passport arrival/ departure stamps, receipts for purchases made abroad or credit card statements showing purchases made abroad. If recapture is granted, an alien will be permitted to extend his stay or reenter the U.S. in H-1B status for exactly the number of days he spent outside of the U.S. during his period of authorized admission.
An H-1B beneficiary who is outside the U.S. or who is in the U.S. in another nonimmigrant status; who has otherwise reached the end of his 6th year in H-1B status; and who spent even a small amount of time outside the U.S. during the validity period of his H-1B can file an H-1B petition seeking to recapture that time. If the recapture is granted, the beneficiary will be placed back in H-1B status, which grants him time to then file another H-1B petition, this time requesting an "extension of stay" and invoking AC21 § 104(c) or 106(a), as appropriate.
USCIS seems to be allowing aliens to recapture time spent outside the U.S. even when they are well past the 6th year of H-1B status. In the case mentioned above, where our client applied for an 8th year extension, and USCIS refused to apply AC21 106(a) to his case because he was outside the U.S., USCIS ultimately did approve the petition based on our alternative argument that he should be able to recapture time spent abroad. USCIS allowed him to accumulate time spent outside the U.S. during the entire seven years he had previously spent in H-1B status. While this is only one case, our experience suggests that it is possible to recapture any time spent outside the U.S. while in H-1B status, even when one is well past the sixth year in H-1B status.
It should also be possible to combine a recapture request with a request for an AC21 § 104(c) or 106(a) request. The May 2005 Yates memo on AC21 contains the following question and answer:
When an alien would otherwise be eligible for an H-1B extension, is it necessary to first file a Form I-129 requesting an extension of time to allow the beneficiary to complete or nearly complete the initial 6 years, and then file an additional form I-129 requesting an extension of time beyond the 6 years?
B. 365 days have passed since the filing of an EB immigrant petition.
Once these requirements have been met, the alien may be granted an extension beyond the 6-year maximum on or prior to the date the alien reaches the 6-year maximum. Such extensions may only be granted in one-year increments, but may be requested on a single (combined) extension request for any remaining time left in the initial 6-year period....
Based on the Yates memo, it would appear that a request for an H-1B extension under AC21 can be combined with another request. It therefore makes sense to combine a request for recapture with a request for extension of stay under AC21. In the event that USCIS refuses to combine the recapture request with an AC21 extension because an alien is not currently in the United States or is not currently maintaining H-1B status, they should at the very least grant the recapture request, allowing another extension of stay to be filed immediately thereafter, invoking AC21.
1 Memorandum, Yates, Associate Director for Operations, USCIS (May 12, 2005), posted on AILA InfoNet, Doc. No. 05051810 (May 18, 2005).
2 8 C.F.R. § 214.1(c)(4) states in the pertinent part, "An extension of stay may not be approved for an applicant who failed to maintain the previously accorded status or where such status expired before the application or petition was filed."
4 8 C.F.R. § 214.1(c)(4) permits untimely extension of stay requests, at the Service's discretion, where, "(i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (ii) The alien has not otherwise violated his or her nonimmigrant status; (iii) The alien remains a bona fide nonimmigrant; and (iv) The alien is not the subject of deportation proceedings under section 242 of the Act (prior to April 1, 1997) or removal proceedings under section 240 of the Act." Thus an alien who is in the U.S. and out of status can receive an extension of stay. A similar provision exists at 8 C.F.R. § 248.1(b) for an untimely request for change of status. Furthermore, an alien in the U.S. and out of status but does not receive a discretionary extension of stay or change of status may still have a petition approved on his behalf but will have to leave the U.S. upon approval, get a visa if required, and reenter the U.S. using the new approval notice before entering the requested status.
James D. Eiss is a former INS officer who has been practicing immigration law in the Buffalo, NY area for the past 16 years.
Danielle Rizzo is a third year law student and has been a paralegal at the Law Offices of James D. Eiss for the past 4 years.
The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.