Be Alert if Relying on Prior Employers’ I-140 Approvals to Extend H-1B Status

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When U.S. employers hire a foreign worker who is maintaining H-1B status with another employer, they are required to file an H-1B transfer petition. It also behooves the hiring employer to screen those candidates to determine how much time they have left in H-1B status, which normally is limited to a maximum period of stay of six years. However, if that employee has a previously approved I-140 petition with a prior employer, it takes much of the pressure off the hiring company, as the I-140 will typically support at least one extension of H-1B status beyond the end of the normal six-year maximum period of stay. Still, over-reliance on prior I-140 approvals to support further extensions of H-1B status can prove detrimental.

Background: When are Post-6th Year H-1B Extensions Available?

H-1B status ordinarily is available for a maximum period of six years. H-1B beneficiaries initially can be granted H-1B status for up to three years, and can renew for an additional three-year period, for a total period of stay of six years. However, there are two notable exceptions to the six-year limitation for H-1B workers, both of which depend upon the beneficiary having gotten to a certain point in the employer-sponsored permanent residency application process.

Specifically, the American Competitiveness in the Twenty First Century Act (AC21) creates two separate bases for a post-6th year H-1B approval:

  1. AC21 §104(c) provides for a 3-year extension of stay past the end of the 6th year for anyone who has an approved I-140 and whose priority date is not current under the “Final Action Dates” chart in the Visa Bulletin.
  2. AC21 §106(a) provides for a 1-year extension of stay past the end of the 6th year for anyone on whose behalf a PERM or I-140 was filed at least 365 days ago and on whose behalf a final decision has not yet been made to deny a PERM, I-140 or I-485 and whose I-485 has not yet been approved.

The availability of post-6th year H-1B extensions is particularly beneficial for those beneficiaries born in India or China, as the wait time for a visa number can be many years (in many cases, over a decade for those born in India).

When Relying on a Prior Employer’s Approved I-140 for H-1B Extensions Becomes Problematic

When an H-1B beneficiary obtains an I-140 approval and subsequently changes jobs, she retains many benefits from the approved I-140 with her prior employer, including the following:

  • She can retain the priority date from her earlier I-140 petition approval and apply it to a new I-140 filed by her new employer;
  • If she is married, her spouse can obtain an H-4 EAD based on the approved I-140 petition; and
  • She can obtain three-year H-1B extensions past the end of her 6th year of H-1B status indefinitely while waiting for a visa number to become available, even with a new H-1B petitioner.

Employers who hire H-1B beneficiaries with previously approved I-140 petitions reap these benefits as well; they can file multiple three-year H-1B extensions on behalf of the beneficiary before even starting a new PERM and I-140. However, the new employer ultimately will need to file a new PERM and I-140 for the employee in order to support the employee’s eventual application for permanent residency, and there are regulatory limitations on the availability of post-6th year H-1B extensions based on a prior employer’s approved petition.

8 C.F.R. §214.2(h)(13)(iii)(D)(10) provides that a post-6th year extension may not be approved on either of the above-noted bases if the employee’s priority date has been current according to the “Final Action Date” chart in the Visa Bulletin for at least 1-year and he or she has not yet filed an I-485 application.

It is extremely important for employers (or their immigration counsel) to monitor the priority date established by the employee’s initial I-140 approval. This has become increasingly critical (and difficult to predict) in the past two years as the cutoff dates in the Visa Bulletin have rapidly moved forward for those chargeable to India, allowing many people who have been waiting for many years to finally file an I-485 application.

If there are employees maintaining H-1B status whose priority date suddenly becomes current, they only have one year to get an I-485 filed, and there is no way to do so until the new employer’s PERM has been approved and the I-140 has been filed. This creates a potential problem for those whose priority dates are current and who need to extend H-1B status, as there may be no basis for doing so. Moreover, one year may very well not be sufficient time to get a PERM filed and approved due to delays with prevailing wage determinations and PERM processing timeframes (particularly if the PERM is audited).

In short, when employers hire an H-1B worker who has an I-140 petition approved with a prior employer, they (and/or their counsel) should proactively and continually monitor how close H-1B beneficiaries’ priority dates are to becoming current in order to prevent a scenario where the individual has no basis to remain in the United States.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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