3rd Preference: January 15, 2006 for all Areas except:
Have two methods available for extending H-1B status pending the time necessary to complete adjustment of status.
Neither method requires that the worker be physically in the U.S. in H-1B status when filing.
It is understood that the worker may have changed to another status or departed temporarily; thus, the petition may be for change of status within the U.S. or consular notification for visa application or visa exempt admission.
Neither method requires that the H-1B employer and the employer who filed the LCA or the immigrant petition be the same.
Neither method requires that the H-1B holder be seeking adjustment of status as opposed to immigrant visa processing abroad.
First Method under AC21 Section 104(c)Employment based visas are limited and oversubscribed for some categories, particularly for certain countries. More people are qualified for those categories than there are slots available. Beneficiaries are placed in line based on their priority date.
Notwithstanding the impact of oversubscription, or the six-year limit on stays in H-1B status, beneficiaries of labor certification applications or certain* employment-based immigrant petitions may be eligible to extend their H-1B status.
In cases where the beneficiary is subject to oversubscription in one of the first three employment preferences (*this restriction eliminates EB-2 religious workers and EB-5 investors) for whom an I-140 petition has been approved, H -1B status may be extended in up to three year increments to allow the beneficiary's processing and a decision made on the beneficiary's adjustment of status application.
Second Method under AC21 Section 106(a)
H -1B status may be extended in one year increments for a beneficiary of any labor certification application that is required or used to obtain employment based status, or a beneficiary of an employment-based immigrant petition (in any category whether using I-140 or I-360). The petition or underlying labor certification application must have been filed at least 365 days before the expiration of the H-1B normal 6-year maximum period of admission. In addition, the application or resulting petition petition or independent petition must not have been finally denied (i.e., no administrative appeals remains) and permanent residence has not been adjudicated.
If the current approval will expire before the end of the maximum stay, the petition may request the remainder of the 6-year maximum plus a year under Section 106(c) as long as, by the time the maximum will be reached, the labor certification or petition will have been filed 365 days before.
Many others are affected by retrogression. For example, if you are a RN, you most likely do not have H-1B. And your employer's interest in sponsoring you is tempered by the idea that your ability to begin work is put on hold for six years waiting for your priority date to become current. In most cases, you keep trying to find an employer petitioner and wait abroad. However...
Surprise! Under Section 245(i), it is possible for registered nurses and anyone who has an approved I-140 petition under the EB-1, EB-2, and EB-3 categories to remain in the United States and adjust status to legal permanent residency. Application of 245(i) requires that either a Section 204 petition (family based or professional athlete) or labor certification application was submitted prior to April 30, 2001.
If you qualify under Section 245i, you can now work within 90 days! How? Immediate submission of an application for adjustment of status is possible via 8 C.F.R. 204.5(e), which allows for retention of the priority date of the previously submitted petition to be retained. The priority date for the former petition would be current because it was filed prior to the retrogressed 2003 date; therefore, it can be used for filing a new visa petition, even if you are filing for a position with a new title.
Retention of section 203(b)(1) , (2) , or (3) priority date. -- A petition approved on behalf of an alien under sections 203(b)(1), (2), or (3) of the Act accords the alien the priority date of the approved petition for any subsequently filed petition for any classification under sections 203(b)(1), (2), or (3) of the Act for which the alien may qualify. In the event that the alien is the beneficiary of multiple petitions under sections 203(b)(1), (2), or (3) of the Act, the alien shall be entitled to the earliest priority date...