The American Competitiveness in the Twenty-first Century Act (AC21) has updated its H-1B portability and allotment regulations. The regulations also include guidance on extending H-1B status beyond six years.
With the updates to the H-1B portability and allotment regulations, employees obtaining a green card can now extend their H-1B status. Additionally, employees with an approved I-140 immigrant petition and an expired priority date for their birth country can get their H-1B status extended in three-year increments under the Visa Bulletin.
These regulation changes are especially beneficial for employees from India and China who are dependent on H-1B extension provisions. Such employees depend on these provisions to maintain their H-1B status while waiting for their eligibility status to be adjusted.
In cases of lengthy adjudication, the special provisions in the AC21, section 106(a), permit H-1B extensions past the sixth year if 365 days have passed since filing the I-140 or labor certification. In addition, section 106(b) of AC21 permits year-long extensions while waiting for U.S. Citizenship and Immigration Services to decide on the applications for permanent residence. To be eligible for this benefit, the employee must file an I-485 adjustment-of-status application or have applied for an immigrant visa through consular processing within one year of the current priority date.
However, if the Visa Bulletin shows that the priority date for the employee is not current, the filing requirement will be reset to one year. Exceptions to this requirement include those who do not file the I-485 adjustment-of-status application or attempt to obtain an immigrant visa abroad due to circumstances beyond their control are exceptions.
Because the Visa Bulletin moved slowly before this update, starting the green card process was not difficult for employers. At the time, this was especially easy if the employee still had their priority date from previous employment.
Since the update, there has been forward movement in the Visa Bulletin. Foreign national employees who have been in the United States for the maximum H-1B stay and have their I-140 approval notices may not be subject to the visa backlog. In such cases, it is imperative to confirm whether the priority date is current and if the employee has taken the required steps to finalize the immigration process. Employees with approved I-140 petitions may struggle to acquire additional extensions. They can either get a one-year extension or no extension at all. Because of this, employers should consider how this affects new and current employees, ensuring they start the green card process on time.
Filing can be challenging, so it is best to utilize an electronic I-9 management tool to ensure the forms are filed correctly. Such tools guide hiring personnel through the entire process and help securely manage and store all of your employees’ I-9s for review whenever needed.
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