We were recently contacted by a client for the answer to the following scenario:
The client is in H-1B status and he was recently employed by a new employer. However, he has been in H-1B for almost 6 years. Luckily, the new employer has a labor certificate application pending exactly for the position the client is hired for, and the person the labor certificate was originally filed for left the company because of marriage with a U.S. citizen. The LC application has been pending for almost two years and is likely to be approved in the upcoming months. The client will substitute the leaving employee and apply for adjustment of status. The question is whether he can apply for extension of his H-1B based on his substitution for the labor certificate and I-485 application.
The answer is yes.
Under The American Competitiveness in the Twenty-First Century Act (AC21), H-1B holders can apply for extension of H-1B status one-year at a time after the six-year period if:
(i) the H-1B holder is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of status; and
(ii) 365 days or more have passed since the filing of a labor certificate application that is required for the alien to get employment-based green card, or 365 days or more have passed since the filing of the I-140 employment-based immigrant petition.
AC21, however, does not clarify whether a person can apply for the one-year extension if he has labor certificate application filed and pending for over one year. That issue has been addressed since following the passage of AC21, the Congress in November of 2002 passed "21st Century Department of Justice Appropriations Authorization Act" (H.R. 2215). According to the Act, H-1Bs can extend H-1B one year at a time as far as the labor certificate is pending for over 365 days. The extension can be filed even if the labor certificate has not been approved.
The extension provision applies to substitution situation like the client’s. The key, however, is to prove that the client has substituted the employee who left. Therefore, either an ETA 750B must be filed with the State Employment Agency, or immediately after the LC was approved, the employer should file the I-140 application for the client.