June 10, 2005

Yates Memo - June 10, 2005 - Guidance on H-1B Issues

Extensions Beyond the 6 Year Term Allowed in One and Three Year Increments

H-1B Extensions Beyond the 6 Year - Extensions for up to one year at a time are allowed prior to any I-140 immigrant petition having been approved. After a labor certification and I-140 petition is approved, a one time extension in a 3 year increment is allowed IF visas from the subject country ARE NOT available because of retrogression. An attempt for another extension in a 3 year increment MAY be sustained, if visa retrogression continues, and would be approved at the discretion of the USCIS. It would not hurt to try for the same in such a situation.

Applications for Extensions Beyond the 6th Year Before 365 Days Has Elapsed Since First Step of Green Card Filing Are Allowed

As long as 365 days elapses prior to the start date requested in the petition, an extension beyond the 6 year term may be filed. This means, one may file prior to the 365 day period having elapsed, as long as the start date indicated in the petition commences after said 365 day period. processing.

SUBSTITUTION CASES - The Party Being Replaced in a LABOR CERTIFICATION Case Cannot Use the Same Labor Certification to Obtain an Extension Beyond the 6 year Term.

If a Beneficiary is substituted into a labor certification filing, ONLY he/she may obtain extension beyond the 6th year term using the same labor certfication. The replaced party, or previous Beneficiary, may no longer use the same labor certification case to extend beyond the 6 year H-1B term.

An Appeal of the I-140 Immigrant Petition Allows Beneficiary to File for H1B Extensions Beyond the 6 Year Term

Until a decision is final in an I-140 case, a Beneficiary covered thereunder may obtain extensions beyond the 6th year term. This includes those cases in which the I-140 is on appeal.

H1B Extensions Beyond the 6 Year Term in Cases, Atleast for Now, May be Given Even If NO I-140/485 Can Be Filed

If no I-140/485 may be filed for reasons including visa retrogression, the memo indicates that extensions beyond the 6 year term will remain possible, for the time being.

H-1B Extensions Beyond 6 Year Term Allowed Based on Green Card Process Undertaken By a Different Company

Although this has been clear since the commencement of AC21, the memo makes clear that a Beneficiary can undertake the green card process with one employer, and then based on said green card process, seek an extension of H-1B stay beyond the six year term from another employer.

H1B Transfers After the 6th Year Term

H-1B transfers are allowed after the 6th year term, as per usual rules. One can work under portability provisions with any employer, while his/her petition is pending. Therefore, if a Beneficiary has an approved petition beyond the 6 year term with time left on the same, he may transfer to any other employer and utilize usual rules applying to extensions including portability, beyond the 6 year term. If a Beneficiary merely has an application pending for extension beyond the 6 year term, and is beyond the expiration date of his current H-1B approval, the usual rules would apply in that case as well. The rules in such a case would allow one to work under portability provisions with any subsequent employer, but for the subsequent petition to be approved, the previous petition would also have to be approved to validate the period of time beyond the expiration of his current H-1B approval and the filing of any subsequent petition.

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