On September 23, 2005 William Yates of C.I.S. HQ issued a memo which, in part, dealt with the subject of Requests for Extension of H-1B Status Beyond the 6th Year. On the basis of that memo, Chapter 33.3(g)(8) of the CIS Adjudicator's Field Manual was revised to read as follows:
(8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition.
As discussed in section 31.2(d) of the AFM, assuming the alien is otherwise qualified for an extension of H-1B status, USCIS will grant an extension beyond the 6th year if the filing date of a pending or approved labor certification application or a pending or approved EB immigrant petition is 365 days or more prior to the requested employment start date on the H-1B petition. Such extension should be granted regardless of whether the H-1B extension application was filed prior to the passage of such period. However, if the alien would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, then the extension of stay request cannot be granted. The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments until a final decision is made to:
- Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
- Deny the EB immigrant petition; or
- Grant or deny the alien’s application for an immigrant visa or for adjustment of status.
A decision to certify or deny an application for labor certification is made by one of Department of Labor’s certifying officers. If the application is denied, the employer is advised that there is a period of time in within which the decision may be appealed to the Board of Alien Labor Certification Appeals (BALCA). For Form ETA-750 labor certification applications filed prior to March 28, 2005, the employer must file an appeal within 90 days. For Form ETA-9089 labor certification applications, the employer must file an appeal within 30 days. If the employer does not file an appeal within that period, the denial becomes the final decision of the Secretary of Labor. The USCIS will not consider a DOL decision to be final until either the time for appeal has run and no appeal has been filed or, if an appeal is taken, the date a decision is issued by BALCA. Therefore, the labor certification will still be considered “pending” while the denial of such certification may be appealed, or while the appeal is actually pending, for the purposes of determining if an H-1B nonimmigrant is eligible for extension of stay.
Note: As stated elsewhere in the AFM, while extension for a period beyond the alien’s 6th year may only be granted in one-year increments, such extensions may in certain cases be combined with earlier extension requests provided the above criteria and all eligibility criteria are met. The total maximum grant for any H-1B extension request is 3 years. Thus, for example, a single H-1B petition and request for extension may be filed combining a request to extend the alien’s H-1B status for years 5 and 6, and also for year 7. See separate AC21 memos for additional guidance.
Documentation for Form ETA-750 Labor Certifications Filed Pre-PERM and Still Pending:
The USCIS will accept the following documents as evidence that an application for labor certification filed on behalf of the H-1B beneficiary has been pending 365 days or more:
- • A document from a State Workforce Agency (SWA) reflecting that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more; or
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- A document from one of Department of Labor’s Employment and Training Administration (ETA) regional offices reflecting that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more, or
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- A database screen-print from one of Department of Labor’s Employment and Training Administration (ETA) backlog reduction centers reflecting that a Form ETA-750 filed on behalf of the H-1B beneficiary has been pending 365 days or more.
The above documents must include the name of the petitioning employer, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the pending Form ETA-750. If the H-1B nonimmigrant is requesting an extension based upon a labor certification that has been pending 365 days or more but was certified in the name of another alien, the H-1B nonimmigrant may be eligible for the extension provided the H-1B petitioner submits evidence that the beneficiary is using the labor certification to obtain status as an EB immigrant. This means that the alien will be the beneficiary of a pending or approved Form I-140 based on that labor certification.
If such documentation is unavailable due to DOL’s transition to the PERM labor certification system, and until DOL notifies USCIS that it has resolved the database screen-print backlog, USCIS will accept documentary evidence of the mailing of the Form ETA-750 labor certification application to DOL, such as copies of USPS certified mail receipts or proof of delivery documents issued by private package handlers may be submitted in support of the H-1B extension requests, accompanied by a signed attestation by an authorized official of the petitioning employer, which must include the name of the petitioning employer, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the pending Form ETA-750.
Misrepresentation Regarding the Filing and Pendency of Labor Certifications:
In the event the alien beneficiary, the petitioning H-1B employer or its authorized representative has made a false claim that a labor certification was filed with DOL and is pending at the Backlog Elimination Center in connection with an application to extend the stay of an alien beneficiary beyond the 6th year in H-1B status, USCIS may in its discretion deny a pending Form I-129 H-1B petition and extension request or revoke the approved Form I-129 H-1B petition.
Effect of Withdrawn Form ETA-750 Labor Certifications and Re-Filing Under PERM During Transition:
If a Form ETA-750 labor certification is withdrawn by DOL as part of the filing of a new Form ETA-9089, the filing date of the withdrawn Form ETA-750 labor certification may be deemed to be the filing date in order to determine if the labor certification was filed 365 days or more prior to the requested employment start date on the H-1B petition only in the following circumstances:
- If the elements relating to the job opportunity and the alien beneficiary on the newly filed Form ETA-9089 labor certification application are identical to the data elements specified on the previously filed Form ETA-750 (with the exception of the prevailing wage determination), then DOL will allow the employer to retain the original priority date which will be reflected in Section “O.” of the Form ETA-9089.
- If DOL does not allow the employer to retain the priority date on the Form ETA-750 or if the Form ETA-9089 is still pending at the time of filing the H-1B extension petition, if the elements relating to the job opportunity and the alien beneficiary on the new labor certification application are not materially different from the data elements specified on the previously filed Form ETA-750 (with the exception of the prevailing wage determination).
As an example, with all other things being equal, if the Form ETA-750 indicated that the job opportunity was located in La Jolla, CA, and the Form ETA-9089 indicated that the job opportunity was located in Del Mar, CA, the elements of the job opportunity on the Form ETA-9089 would still be materially the same as the job opportunity on the Form ETA-750, as the location of the position would still be within the same geographic area. In this instance, the filing date of the Form ETA-750 could be used to determine if the labor certification was filed 365 days or more prior to the requested employment start date as reflected on the Form I-129 petition.
Conversely, if the Form ETA-750 indicated that the minimum education requirement for entry into the position was a Bachelor’s degree in Computer Science, but the Form ETA-9089 indicated that the minimum education requirement for the position was a Master’s degree in Computer Science, then the elements of the job opportunity would not be materially the same. In this instance, the filing date of the Form ETA-750 could not be used to determine if the labor certification was filed 365 days or more prior to the requested employment start date as reflected on the Form I-129 petition.
Document Required to Establish Eligibility to Retain Original Filing Date for H-1B Extensions After Re-Filing Under PERM:
In order to retain the priority date under these circumstances for H-1B extension purposes only, the following documentation must be provided:
- In the instances where DOL has allowed the employer to retain the priority date and the retained priority date is reflected in Section “O.” of the certified Form ETA-9089, a complete copy of DOL certified Form ETA-9089, or
- In the instances where the Form ETA-9089 is still pending or has been certified by DOL, but the Form ETA-9089 does not reflect the original filing date in Section “O.” of the form, the documentation to show that the elements of the job opportunity and the alien beneficiary are materially the same on both the Form ETA-750 and the Form ETA-9089 must include:
- A signed statement from an authorized official of the petitioning employer that outlines the elements of the job opportunity and data relating to the alien beneficiary that differ between the Form ETA-750 and the Form ETA-9089, the date that the Form ETA-750 was filed, the name of the alien beneficiary, and the case number assigned to the Form ETA-750,
- A complete copy of the Form ETA-750, Part A and B, and
- A complete copy of the Form ETA-9089, with evidence that shows the date that the document was filed with DOL.
