Neufeld Memo of USCIS on H1B/GC under AC21 : Part 1
Posted Jul 04, 2008; updated Jul 11, 2008

Read Parts 2 & 3 of this article :
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 2  Jul.11.2008
Neufeld Memo of USCIS on H1B/GC under AC21 : Part 3  Aug.08.2008
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The USCIS issued a memo on May 30, 2008 regarding the provisions of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21). The memo was issued by Donald Neufeld, Acting Associate Director, Domestic Operations at USCIS, and directed to the USCIS Field Leadership. The Memo provides clarification of current USCIS policy with regard to H1B extensions beyond the six-year limitations, H1B concurrent employment, and H1B employees attempting to change employers after reporting labor violations. It also reiterated guidance on changing employers during the employment-based, permanent residence process. This Memo does not supersede previous policy and guidance contained in prior USCIS memos addressing AC21, except where specifically noted. For the benefit of MurthyDotCom and MurthyBulletin readers, we focus here on the issues of one-year H1B extensions beyond the six-year limit addressed by the Memo.
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Background on LC Expirations and H1B Filings
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Regarding the impact of the expiration of a labor certification, questions have arisen on the ability to obtain one-year extensions of H1B status based on the labor certification. The basic rule under AC21 is that H1B status can be extended in one-year increments if the foreign national is the beneficiary of a labor certification (LC) that was filed with the U.S. Department of Labor (DOL) at least 365 days prior to the extension request. When AC21 became law, labor certifications were valid indefinitely. As of July 16, 2007, under revised DOL regulations, labor certifications expire 180 days from the date of approval or certification, unless the employer moves forward with the green card case by filing an I-140 petition. In order for an LC to remain valid, the petitioning employer must file an I-140 employment-based petition prior to the expiration of the LC. Accordingly, labor certifications approved prior to July 16, 2007 (which did not contain expiration dates) all expired 180 days after July 16, 2007 (by mid-Jan 2008), unless the respective employers filed I-140 petitions based upon the labor certifications before expiration. These changes were discussed in our May 2007 NewsFlash, LC Substitution Elimination Reg. Effective July 16, 2007.
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Neufeld Memo Requires LC Validity to Obtain H1B Extension
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In order to clarify the issues raised by the expiration of labor certifications, the May 30, 2008 Memo sets forth a new policy. The USCIS may grant one-year H1B extensions, based upon a previously-filed labor certification if: a labor certification is unexpired at the time of filing the H1B extension; and the labor certification was filed with the DOL or the I-140 petition was filed with the USCIS at least 365 days prior to the date the H1B employee will have exhausted six years of H1B status; and the extension and I-129 petition are otherwise approvable.
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This is a departure from previous policy and practice, as the USCIS previously granted one-year H1B extensions even if the labor certification had not yet been used in support of an I-140 petition.
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H1B Extension Filing Allowed Prior to Expiration of H1B Six Years of Stay
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The Memo provided some beneficial guidance in regard to one-year extensions beyond the six-year limit in H1B status. It states that requests for one-year H1B extensions may now be made simultaneously with a request for the remainder of the time in the six-year limit. Adjudicators should now first determine the date on which the employee will exhaust his/her six years in H1B status, and then determine if s/he will be eligible for the one-year extension from the date that the six years will be exhausted. This is far more efficient than the approach taken in previous guidance. In prior guidance, the USCIS stated that adjudicators must determine whether or not an H1B employee would be eligible for the one-year extension at the time of the requested start date of the petition. This effectively required two H1B filings in some circumstances: the first to use up the balance of the six years (even if brief), and the second petition to obtain a one-year H1B extension based upon a labor certification that had reached the 365-day point.
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Example
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The foreign national in this example is beneficiary of an approved labor certification filed August 1, 2007. The employer files an I-140 petition based upon the LC, and is pending a decision. His/her H1B expires July 1, 2008. S/he first entered the U.S. six years earlier as an H1B professional. The foreign national spent three months outside the U.S. during the past six years in H1B status. It is therefore possible to obtain an H1B extension by recapturing the time abroad.
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Old Guidance:
According to the previous guidance, the labor certification in this example would be 365 days old on July 31, 2008. Thus, at that point, the foreign national would become eligible for an additional year of H1B status. However, if an H1B petition is filed with a requested start date of July 1, 2008, based upon recapture, combined with a request for an additional one year of extension to follow the recapture time (since by that point, the LC will be more than 365 days old) the petition is likely to be approved for the three months of recapture time, only. The additional one-year H1B extension likely will be denied, since the foreign national was not eligible for that year as of the requested H1B petition start date of July 1, 2008. Thus, a three-month H1B would be granted, and then it would be necessary to file another H1B petition requesting the additional year.
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Neufeld Guidance:
If we follow the new guidance in this same example, however, it now is possible to combine the request for the remainder of the H1B time in the six-year period, followed by a one-year extension, as long as the labor certification will be a year old at the time when the six years of H1B time ends. Only one H1B filing can be made, therefore, combining the three months that can be recaptured with the one year of additional H1B time, based upon the 365-day-old labor certification.
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Conclusion
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The Memo's provisions for H1B extensions are favorable with regard to certain aspects of the H1B extensions of AC21, and restrictive for others. Further information on the Neufeld Memo's provisions on other AC21 issues will be provided in Part 2 of this article in an upcoming edition of the MurthyBulletin.