June 09, 2008 - In an internal memorandum issued May 30, 2008, USCIS clarified its procedures for adjudicating certain petitions filed pursuant to the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA).

Highlights of the USCIS announcement are as follows:

H-1B Extensions of Stay Beyond the 6^th Year

Pursuant to AC21, USCIS will grant H-1B extensions of stay in increments of one year wherein an application for labor certification or an immigrant petition has been filed at least 365 days prior to exhaustion of the statutory six year period in H-1B status.

• The USCIS memo clarifies that an approved labor certification subsequently revoked by the DOL may not serve as the basis for an H-1B extension petition beyond the six-year maximum.
• In addition, USCIS specifies that labor certification applications which have expired for failure to timely file an I-140 immigrant petition may not serve as the basis for an H-1B extension beyond the sixth year.

AC21 also provides an alternate basis for an H-1B extension beyond the sixth year when the H-1B employee is the beneficiary of an approved I-140 immigrant petition and is eligible to be granted immigrant status but for the application of per country limitations i.e. the individual is ineligible to file an I-485 because his or her priority date is not current per the U.S. Department of State Visa Bulletin. These extensions may be granted in three-year increments.

• USCIS in this memo affirms that despite the title of the statute which refers to a “one-time” protection, USCIS may grant H-1B extensions pursuant to this section of the law until the H-1B beneficiary’s application for adjustment of status has been processed and a decision made thereupon.
• To determine eligibility for these extensions, USCIS adjudicators will review the visa bulletin that was in effect at the time of the filing of the H-1B extension petition (and presumably not the visa bulletin in effect at the time that the extension petition is being adjudicated).

Concurrent H-1B petitions for Individuals with Cap-exempt H-1B Status

H-1B petitions filed by institutions of higher education, nonprofit organizations related to institutions of higher education and nonprofit or governmental research organizations are exempt from the H-1B numerical limitation. Individuals holding cap-exempt H-1B status may seek concurrent employment with a cap-subject employer and remain exempt from the H-1B cap.

• USCIS requires that the concurrent H-1B petition document that the H-1B beneficiary is still employed in the cap-exempt position at the time of filing of the concurrent petition.
• Such evidence may come in the form of a current letter of employment or a recent pay stub showing employment with the cap-exempt employer.

Changes in Employment for H-1B workers who Report LCA Violations

Per ACWIA, H-1B workers who present credible documentary evidence of retaliation by an H-1B employer for reporting LCA violations may be allowed to seek other appropriate employment in the U.S. for a period not to exceed the maximum period of stay authorized for H-1B classification.

• USCIS clarifies that these H-1B workers thus remain eligible to apply for a change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by their employer.
• Credible documentary evidence includes a copy of the complaint filed by the H-1B beneficiary along with corroborative documentation showing that the complaint resulted in retaliatory action.

I-140 Petition Must be Approved Prior to a Favorable Determination of a Portability Request

AC21 includes an I-140 portability provision which allows individuals applying for permanent residence to change jobs or employers without jeopardizing the validity of the I-140 approval wherein an I-485 Application to Adjust Status has been filed and remains pending for 180 days or more and wherein the new job is in the same or similar occupational classification.

• USCIS states that an I-140 Immigrant Petition must be approved prior to a favorable determination of a portability request. They reiterate that the mere passing of 180 days does not validate the immigrant petition for purposes of I-140 portability and the subsequent approval of an I-485.
• USCIS maintains that this is consistent with prior USCIS guidance which provides that an I-140 immigrant petition may be approved after a beneficiary changes employers (“ports”) as long as the I-140 immigrant petition was approvable when filed. In such cases, the USCIS is to review the pending I-140 petition to determine if the preponderance of the evidence establishes that the I-140 is approvable or would have been approvable had it been adjudicated within 180 days. If the adjudicating officer deems the petition approvable, the I-140 will be approved and USCIS will review the adjustment of status application to determine if the new position is the same or similar occupational classification to complete the review of the portability request.