USCIS has released a May 12, memorandum interpreting a Yates notes that prior AC21 guidance memoranda remain in effect and the. Mr. Yates indicates that the proposed regulation may be more restrictive than the memo. The USCIS has not even issued proposed AC This issue is addressed in a USCIS memo discussed in our May 27, article, Yates May Memo on AC21 and Is, as well as our.
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The Neufeld Memo emphasizes that the beneficiary must jemo have ceased to be employed by a cap-exempt employer in order to be eligible for a concurrent H-1B petition that is filed by cap-subject employer.
The Neufeld Memo does not appear to contradict the interpretation in the Yates Memo. It remains to be seen whether the Nebraska and Texas Service Centers, which have sole jurisdiction over I petitions, will be amenable to follow the Yates Memo policy and allow beneficiaries who have ported to be able to respond to a request for evidence on an I petition so as to facilitate its approval. Although the Yates Memo suggested that an alien can port off an unadjudicated I, it impliedly concluded that porting could occur aac21 if the I was approved but provided a mechanism for that approval even though the alien was no longer with the employer who had filed the I petition.
If the petition is approvable but for an ability to pay issue or any other issue relating to a time after the filing of the petition, approve the petition on its merits.
In fact, it states that Al Wazzan is consistent with the earlier guidance. Leave a Reply Want to join the discussion? This article highlights some of the important interpretive guidance in the Neufeld Memo, but also advises practitioners to advocate positions on behalf of their clients that have not been addressed in the Neufeld Memo.
NEW INTERPRETATIONS ON AC21 | Cyrus D Mehta & Partners PLLC
Or, if your I has already been approved but your priority date is not current, i. Another benefit of AC21 for H1B workers is that in case of “H1B transfer,” they can start working for the new employer upon filing of the new H1B petition, i.
If a request for additional evidence RFE is necessary to resolve a material issue, other than post-filing issues such as ability to pay, an RFE can be issued to try to resolve the issue. Unfortunately, the Neufeld Memo does not address this issue.
If the USCIS determines that an H-1B alien beneficiary has ceased to be employed in a cap-exempt position memi a new cap-subject H-1B petition has been approved on his or her behalf, USCIS will deny any subsequent cap-subject H-1B petition filed on behalf of the H-1B alien beneficiary if no cap numbers are available. Actually it is very important to remember that H4 status is not automatically extended when the primary H1 receives an approval for extension.
USCIS Interim Guidance On Processing Benefits Under AC21
Under that provision, so long as a labor certification was filed days prior the expiration of the H-1B sixth year, the H-1B status could be extended in one-year increments. Review the pending I petition to determine if the preponderance of the evidence establishes that the case is approvable or would have been approvable had it been adjudicated within days.
Feel free to contribute! American Competitiveness in the 21st Century Act AC21 provides two important provisions by allowing a person to change jobs before obtaining a green card, and to extend H-1B visa status beyond the 6-year limit. This memorandum re-issued prior guidance provided in the Yates Memo without change except to clarify the answer to questions 1 in Section 1.
Your email address will not be published. As long as your LC was filed more than days before your completion of six years in H status, you are eligible for 7th-year-extension and beyond. The Neufeld Memo allows for additional time to acquire new H-1B employment and remain eligible to apply for change of status or extension of stay notwithstanding the termination of employment or other retaliatory action by the employer.
If you do not need LC, your process starts when your employer files I for you. Post 6th-year H-1B extensions are filed the same way as regular H-1B Extensions, with the addition of evidence to support AC21 such as a pending labor certification application. Then adjudicate the adjustment of status application to determine if the new position is the same or similar occupational classification for I portability purposes.
If it is discovered that a beneficiary has ported off of an unapproved I and I that has been pending for days or more, the following procedures should be applied: If the H-1B alien beneficiary ceases to be in the employment of a cap-exempt employer, then he or she will be subject to the H-1B numerical limitation, and the concurrent employment petition may not be approved unless a cap number is available to the alien beneficiary.
This policy is less controversial.
USCIS Memo On Remainder Time And Other H Time Determinations
Note that a person’s eligibility for 3-year extension beyond the 6th-year limit is based on visa number availability at the time of filing H1B petition, not on a later date when the extension is actually reviewed.
In other words, while yatex alien is the beneficiary on an H-1B petition approved through a cap-exempt employer, he or she can also be the beneficiary of an H-1B petition filed concurrently through a non-exempt employer. Your six-year total includes all the time you held H1B’s for all employers you worked for, as well as any time you were in H4 status.
This provision can be relied upon even if the labor certification was filed within the days of the sixth year in H-1B status.
AC21 allows beneficiaries of H-1B petitions to extend their H-1B status beyond the maximum limit of six years while the permanent residency process has not yet been completed. There is no AC form, petition or application. Dependents of H1B nonimmigrants are also eligible for extending their H4 status beyond the 6-year uates. Actually, the correct term is H status. But keep in mind that a labor certificate now has expiration dates attached, and will become invalid if I is not filed within six months of LC approval.
This means you can apply for H1B 7th, 8th or 9th year extension, or even more, if you need to. Your letter in the H-1B extension application should explain your eligibility for the use of AC21 provisions. In this section we will discuss the details of how H1B holders can take advantage of AC Similarly, for beneficiaries with approved I petitions, USCIS will grant H1B extensions – in a maximum of 3-year increments – until a final decision is made with regard to their I applications.
He aytes a frequent speaker and writer on various immigration related topics. H-1B visa status is valid for a maximum of six years: Labor certifications that are approved on or after July 16, are valid for calendar days. So it is recommended that H4 dependents file I concurrently with H1 extension applications, to avoid accidentally falling out of status. You may extend ca21 H1B status annually in one-year increments if your green card process was started at least days prior to the day when you reach the six-year limit.
After six years, an H-1B temporary worker must stay outside the U.