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CIS on H-1B extensions beyond the six year limit under the "one time protection"

Discussion in 'AC 21 H-1B Issues' started by Ron Gotcher, Aug 26, 2008.

  1. Ron Gotcher

    Ron Gotcher Attorney at Law

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    12/27/2005 CIS FIELD MEMO:
    Q & A ON PROCESSING OF H-1B PETITIONS
    UNDER THE “ONE-TIME PROTECTION UNDER
    PER COUNTRY CEILING” PROVISION OF
    §104(C) ALLOWING EXTENSION PAST THE
    H-1B 6-YEAR LIMIT

    Question 1. Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?


    Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).


    Question 2. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?



    Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).


    Question 3. If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may more than one extension be granted?


    Answer: Yes. USCIS recognizes that in some cases, because of per country visa limitations, it may take more than three years for the alien to be eligible to adjust. Thus, despite the reference to a “onetime protection” a qualifying alien may be granted more than one extension under this provision.
     

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