The U.S. Department of State’s June 2022 Visa Bulletin reflects significant advancement in the EB-2 category. This has given an opportunity for numerous candidates for permanent residence to move forward with the filing, adjudication, and approval of their I-485, Application[s] to Register Permanent Residence or Adjust Status, the final step in the green card process. While an improvement for many, this forward movement has also created a challenge for certain H-1B extensions. Employers are more frequently seeing situations in which employees who have previously been able to extend their H-1B status in three-year increments can never again do such, or may only be eligible to extend their status for one year.
The American Competitiveness in the Twenty-first Century Act of 2000 (AC21) updated existing regulations regarding H-1B portability and allotment. These regulations also give guidance on extensions of H-1B beyond the six-year limit.
Generally speaking, an employee is eligible to expand their H-1B status past the six-year limit if he or she has reached a certain point in the green card process. Significantly, the employee might extend the H-1B status in three-year increases if the employee has an approved I-140 immigrant petition and the need date for the employee’s country of birth is not current according to the Visa Bulletin. Historically, there has been a visa backlog for Chinese and Indian nationals. Allowing employees from these nations to depend upon these H-1B extension provisions to maintain their H-1B status until they are eligible to apply for adjustment of status.
Under AC21’s section 106(a), Special Provisions in Cases of Lengthy Adjudications. H-1B extensions of stay are also allowed past the 6th year, given that 365 days or more have elapsed since either the filing of the labor certification is required, or the I-140 petition. Section 106(b) of AC21 allows for extensions in increments of one year until U.S. Citizenship and Immigration Services reaches a final decision on the application for lawful permanent residence. To be eligible for such a benefit, however, within one year of the priority date becoming current.
The employee should file an I-485 adjustment-of-status application or have pursued an immigrant visa through consular processing. If there is retrogression, and the employee’s priority date is no longer current as per the Visa Bulletin, the one-year filing requirement resets. The exception to the one-year filing requirement is limited. The failure to file the I-485 adjustment-of-status application or pursue the immigrant visa abroad must have been beyond the control of the employee.
Updates in Visa Bulletin
Given the length of the green card process, it was normal for a foreign national employee to have had one U.S. employer initiate the green card process on his or her behalf and then later elect to change U.S. employers before receiving the green card. Based on past Visa Bulletin trends of the slow movement. It was relatively safe for a foreign national to change employers once the I-140 was approved. Assuming the individual was subject to the visa quota backlog. As this situation gave the ability to expand one’s status past the H-1B six-year maximum. The new employer could restart the green card process without the foreign national employee losing much time. If the employee retained his or her priority date, given the lack of forwarding movement in the Visa Bulletin.
With recent forward movement in the Visa Bulletin, the analysis has become more complex. A foreign national employee who has reached the H-1B maximum period of stay in the United States. Might have an I-140 approval notice, yet the employee may no longer be subject to the visa backlog. How long the need date has been current and whether the foreign national employer taken the additional required steps.
To finalize the immigrant process will need to be assessed. As a result, an employee with an approved I-140 petition may not be able to secure further extensions. Or may only be able to secure a one-year extension rather than a three-year extension. Employers might need to review this issue and consider its effect on fresh hires and existing foreign national employees. To guarantee that a new green card process is started timely to minimize the risk in this area.