H1B Extension within 6 years under AC21

USA H1B Visa
1

Hello Anil,

I am on non-exempt H1B and my first 1st 3 year H1B was given from Jan 2014 to Jan 2017.

I changed my job in May 2016 and so I was granted 3 year H1B from May 2016 - May 2019.

My 6th year of H1B ends in Jan 2020. My company is going to apply PERM next month. I do not think I will be having an approved I140 by the time I apply for H1B extension.

My questions are:

  • I will have 6 months of my H1B left (from May 2019 - Jan 2020). So, for my next extension, will my company apply for 6 months regular H1B which will have 6 months validity?
    (OR)
  • Will my company apply for 1 yr extension under AC 21 for the extension from May 2019 to May 2020?

Thanks,
Sriganesh

2

AC21 extension is possible only in two cases:

  1. Your PERM has been pending for more than 365 days. You can apply for 1 year H1B extension.
  2. Your i140 is approved. You can apply for 3 year H1B extension.

If your case does not fall in either of above cases, you will only get extension for the balance period remaining in your total 6 year H1B quota.
As you mentioned, this will be 6 months for you.

3

Thanks for the quick reply.

  1. So, I will be given a 6 month H1B visa from May 2019 - Jan 2020, right?

  2. Assuming my PERM is applied in September 2018. So I will be able to apply for H1B 1 year extension only during September 2019 (3 months before my Jan 2020 6 month H1B expiry)?

4

Yes, your understanding is correct for both.

5

Thanks again. Few more questions:

  1. Should I get stamping for the 6 months visa or be it any visa extension I get? I am not planning to go out of the country for next 5-6 years (assuming I get H1B extensions)?

  2. So the possible ways for me to get H1B extensions are:
    * My I140 gets approved by next year (if it is before July 2019 (6months from my final H1B expiry), I will be able to apply for 3 year extensions.
    * If my PERM application is still pending, I can apply for 1 year extension under AC 21 by September 2019.

  3. If I apply under AC 21 after September 2019 and if my I140 gets approved after my AC 21 application. Will I be able to apply for 3 year extension immediately? Or have to wait for that 1 year AC 21 extension to expiry?

Thanks,
Sriganesh

6

  1. Stamping is only required if you go outside US and then want to re-enter.
    If you keep extending H1B within USA and do not want to go out, there is no need for stamping.

  2. Yes

  3. You can apply for extension anytime you want.
    Generally, people apply for extension only when current H1B approval is about to expire.
    To answer your question, you can apply for 3 year H1B extension anytime after i140 approval.

7

Thank you so much Anil. Much appreciated.

8

Hello Anil,

If I move to a new company with an already approved I140 from old company and the new company apply for new PERM and it gets rejected.

Assuming I get 3rd H1B (6-9 yrs) approved, will this H1B gets revoked if the PERM gets cancelled?

Thanks,
Sriganesh

9

You can keep extending your H1B using the old company’s I140 as long as you want.

If the new company’s PERM gets rejected, you can file it again but unless it is finally approved, you won’t be able to file I-485 when your priority date becomes current.

10

Thank you. So the new PERM doesn’t have to do anything with the old PERM?

Also, is it usual that the old company will withdraw their PERM/I140 application once I move from them?

11

Nope. Both PERM are independent of each other.

It depends on each individual company policy about PERM and i140 withdrawal.
I cannot guess what they will do.

13

One more follow up question. How will I know whether the old company has withdrawn the PERM/I140 application?

14

You have to ask USCIS using FOIA request:

OR sometimes the status is also reflected in USCIS case status page.

15

Thank you! Much appreciated.

16

Hello Anil,

More questions. So assuming my new employer is ready to sponsor green card for me I change to the new employer after 6 months I140 approval with my old employer. My current I140 was withdrawn by the old employer.

The new employer has to restart the entire process right? In that case I will be having only 2.5 years of H1B left when I join the new employer. So within that 1.5 years (365 days after PERM filing needed to apply for AC21 extension) the new company needs to apply for PERM right?

If they miss this 1.5 years and at the end of this 3 year H1B if my I140 has not been approved, then I cannot extend beyond that. Am i right?

Thanks,
Sriganesh

17

Your new employer can keep filing H1B extensions based on revoked I-140, if the I-140 revocation happened after 180 days of I-140 approval.

So, you are safe there.
The new employer’s PERM can take their time.

Does that answer your question?

18

Yes Anil. That answers my question. Few follow up questions:

  1. So, I can transfer to a new employer at any time of my 3 year H1B?
  2. How will the new company know the details about my revoked I140 and how they will communicate it to the department of labor?
  3. In case in my 3rd year of H1B, the new company has applied for a PERM but the approval is still pending. So instead of AC-21 1 year extension, can I still use my old revoked I140 and file for 3 year extension?

Thanks,
Sriganesh

19

  1. Yes, you can.

  2. You have to have your i140 number with you. If you don’t have it, you can request it directly from USCIS using FOIA request.

  3. Yes, that’s what I answered in previous replies to your questions clearly.

20

Thanks for the explanation Anil.