An article published on McClatchy DC | McClatchyDC.com reported a rumored change to the H-1B visa program, specifically related to American Competitiveness in the 21st Century Act (AC21). Both AC21 Sections 104 and 106 have been passed into law by Congress.
Per AC21, an H-1B nonimmigrant may extend status beyond the six-year limit under the following circumstances:
- AC21 106(a). Extensions in increments of up to one year if 365 days or more have passed since:
- the filing of any application for labor certification (Form ETA 750 or 9089) that is required or used by the alien to obtain status as an EB immigrant; or
- the filing of an EB immigrant petition (I-140).
- AC21 104(c). Extensions of up to three years if the alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence or obtain an immigrant visa based solely on the unavailability of an immigrant visa number due to the “per country” limits on visa availability.
An H-1B petition that requests either of these benefits must include documentation establishing eligibility.
The statutory construction is as follows: the one (1) year extensions are protected under AC21 and contains the word “shall” (meaning “must”)…”The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.”
In contrast, AC21 in reference to the three (3) year extension contains the word “may” (meaning as long as the legal conditions are met)…..”The Attorney General may grant, as extension of such nonimmigrant status until alien’s application for adjustment of status has bene processed and a decision is made thereon.”