May 19, 2005

USCIS Issues New Interim Memo on AC21 (Portability) and H-1B 7th Year Extensions in 3 Year Increments

Please be advised this is an Interim Memo and the final rule may be more restrictive when finally published.

Portability for 140 & 485:

The Interim Memo provides for Portability of the 485 where the 140 has been pending for more than 180 days even though it is not yet adjudicated. However, the caveat is that for Portability to finally apply the 140 must have been approvable. Therefore, even if the beneficiary has Ported after 180 days USCIS may issue an RFE to determine ability to pay or other issue and if the employer responds that the beneficiary is no longer employed by them or no response is sent or fails to submit a response addressing the issues raised in the RFE?the 140 will be denied as will the Portability. If the 140 is denied or revoked for any reason (other than a mere withdrawal by the employer) after 180 days of the 140 and 485 pending then again Portability will fail.

7th year H-1B Extension:

7th year H-1B extensions can be requested along with any unused time left in the initial 6 years. For 7th year Extension there must be either a Labor Certification or I-140 pending for 365 days. The 365 day period applies to LC?s used for substitution filings as well. The 7th year extension request can be filed at any time after the 365 day period has passed. However, no extension can be granted if there is a gap between the expiration of the 6th year period and 365 days pendency of the LC or 140. 7th year extensions will be granted in one year increments till a final decision is made on the underlying Labor Certification, 140 or 485 (as the case may be).

If a beneficiary is substituted under an approved Labor Cert then only the substituted alien is entitled to the 7th year extension. Even if the 140 has not yet been filed and the LC has been pending/approved for 365 days the 7th year extension will be granted. An Appeal of the 140 will also allow extensions till a final determination is made on the Appeal. H-4 extensions will be granted to dependants as long as the H-1B holder meets the extension requirements, however a spouse seeking a 7th extension of the H-1B must independently meet the requirements.

Furthermore, pursuant to Sec104(c) if the I-140 has been approved the alien may apply for an extension in increments of a 3 year period.

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