For those who have exhausted the six years allowed on H-1B, there are some options for extension under the AC-21 provisions. Eligibility depends on whether you are the beneficiary of an approved I-140 petition or have a PERM pending for longer than 365 days (under the lengthy adjudication exemption). For purposes of this article, we will be examining the AC-21 extension based on an approved I-140, specifically looking at the impact of priority date retrogression.

If you have an approved I-140 petition, there are extensions available for either one year or three years. The length of the extension is primarily dependent on whether the priority date of the approved I-140 is current at the time of filing the extension. If the priority date is not current, a three-year extension is available. In cases where the priority date is current, the extension is limited to only 1 year. To be eligible for the 1-year extension, the I-485 must be filed within one year of the priority date becoming current. If your priority date is current but you have not yet filed the I-485 application, you can still apply for the H-1B extension for one year, but you may receive a Request for Evidence (“RFE) asking for proof the I-485 has been filed.

For AC-21 purposes, a “current” priority date is determined using the final action chart of the visa bulletin. Again, if the priority date is not current at the time of filing the H-1B extension, then a three-year extension can be requested. This remains true even if there is a filed I-485 based on the filing chart. Remember, UCSIS may sometimes accept I-485 applications based on the filing chart, even if the priority date is not yet current on the final action chart.

In sum, the determinative factor when looking at whether a one- or three-year extension will be possible is whether the priority date is current. So, what happens when a priority date becomes current, but later retrogresses?

Retrogression

Generally, applicants who wish to adjust their status must wait until the priority date on their approved I-140 becomes current. Your priority date becomes “current” when the visa bulletin, published by the Department of State, shows a date in your preference category for your country which is on or after the priority date shown on your I-140 approval.

Sometimes USCIS will receive more cases for adjustment of status than they can approve under the congressional cap. When this happens, the Department of State will usually adjust the priority date on the visa bulletin, resulting in retrogression. When this happens, some cases with priority dates that were previously current will no longer be current.  If the I-485 application was already filed, USCIS will keep the application on their side until the priority date becomes current again and a visa becomes available. If the I-485 was not yet filed, the beneficiary of the approved I-140 can continue to renew their H-1B in three-year increments until the priority date is again current.

1-Year or 3-Year Extension Under AC-21 and Retrogression

Under AC 21 § 104(c)(2), any alien who is the beneficiary of an approved immigrant petition under the EB-1, EB-2, or EB-3 preference categories and is eligible to be granted that status but cannot be yet due to the per country limitations (meaning a visa is not available), can apply for H-1B extension until the I-485 has been processed and a decision has been made. Basically, this provision of AC-21 allows H-1B holders to file for an extension in three-year increments until their priority date becomes current.

Under AC 21 § 106 (b), there is a different extension available for lengthy adjudication delays. This applies either where a PERM has been filed and is pending more than 365 days or where an I-140 has been approved and the I-485 has been filed, but the green card has not yet been approved. In these instances, an extension may be granted in 1-year increments until a final decision is made on the person’s lawful permanent residence.

Under 8 CFR 214.22(h)(13)(iii)(D)(10), if the 1-year period is interrupted because of the unavailability of immigrant visas (such as in the instance of retrogression), then the applicant does not qualify for a 1-year extension.

Instead, 8 CFR 214.22(h)(13)(iii)(E) states that if the H-1B beneficiary would be eligible for adjustment of status but for the unavailability of immigrant visa at the time of filing the H-1B, they instead qualify for a full 3-year extension. This is particularly important when priority dates retrogress. That is, the priority date was current at one point and an I-485 was filed, but later the priority date is retrogressed meaning visas are no longer available. When this happens, the one-year extension will no longer apply, but the three-year extension will again become available.

To illustrate this, please see the following examples:

• An H-1B holder has an approved I-140 and the priority date is current. The adjustment of status petition was filed within 1 year of the priority date being current. The H-1B holder’s H-1B status is about to expire. To remain in valid H-1B status while the I-485 is pending, the beneficiary and his/her employer decide to file an H-1B extension. Because the priority date is current at the time of filing and the I-485 has been filed, the H-1B holder only qualifies for an extension in one-year increments until the I-485 is decided.
• Now, let’s say the H-1B holder needs to file another extension one year later, but now the priority date has been retrogressed (meaning there is no visa available because the priority date went back in time.) Here, the H-1B holder now qualifies for a full 3-year extension because at the time of filing the extension, the priority date is not current. This is true even though the I-485 was already filed because a visa is not available.
• Finally, let’s say the H-1B holder’s three-year extension was approved. At the end of the three-year period, the H-1B holder needs to file another extension. This time, the priority date is current again at the time of filing. The I-485 has resumed processing but is not yet approved. Here, the H-1B holder can only ask for a 1-year extension because the priority date is now current.

It is important to remember that eligibility for extension under AC-21 only applies if the priority date is current, and an adjustment of status petition is filed within 1 year of the priority date being current. If the priority date is current and an adjustment of status petition is not filed within 1 year, the H-1B holder will not qualify for additional extensions beyond the six-year period. This can get tricky if there is a change in employer or the original I-140 employer no longer exists. You can read more about those scenarios here.

Conclusion

We recommend maintaining H-1B status (or another nonimmigrant status) until your green card is approved. AC-21 allows for different extensions of H-1B status depending on where you are in the green card process, so it is important to understand your options. Because these options are determined based on whether your priority date is current, your options can change with little notice based on the monthly visa bulletin. As such, understanding the impact of retrogression on AC-21 extension can help you plan your next steps in case it happens to you.

If you have questions about the AC-21 extensions or the impact of priority date retrogression, reach out to one of our experienced attorneys today. We’re in this together.