AC21 H-1B Extensions: How PERM Delays Over One Year affect status

Many H-1B workers hit a wall when they approach the six-year limit and their green card case is still stuck at the PERM stage. The American Competitiveness in the Twenty-First Century Act, known as AC21, is often the only way to keep working and stay in the country while the case moves forward. When used correctly, AC21 allows H-1B extensions well beyond six years based on a pending or approved PERM and related I-140 petition.

When AC21 H-1B Extensions Become Possible

Under current Department of Labor timelines, the full PERM process can take 22 to 36 months, including prevailing wage, recruitment, filing, and possible audit. As of September 2025, PERM adjudication alone averages 472 days (about 15.5 months). Because of these long waits, many workers hit the six-year H-1B limit before PERM or the I-140 is approved.

AC21 was written to address this exact problem. It establishes two main tracks for H-1B extensions beyond six years:

• One‑year extensions based on a long‑pending PERM or I‑140 (Sections 106(a) and 106(b))
• Three‑year extensions based on an approved I‑140 when no visa number is available (Section 104(c))

These options let employers retain key staff and give workers a realistic path to permanent residence even when government processing drags on.

Who Qualifies for One‑Year Extensions Under AC21 Section 106(a)

You may qualify for a one‑year AC21 extension if:

• Your employer filed a PERM labor certification or Form I‑140 immigrant petition at least 365 days before your six‑year H-1B limit, and
• Your employer files a proper H-1B extension petition using Form I-129, meeting all regular H-1B rules.

The critical factor is the filing date, not the approval date. If your PERM or I‑140 was filed at least 365 days before you hit the six‑year cap, you can request a one‑year extension of H-1B status under Section 106(a), even if the case is still pending.

For example, if your six‑year H‑1B limit is August 1, 2027, your employer needs to have filed your PERM or I‑140 on or before August 1, 2026 to qualify for AC21 one‑year extensions.

According to analysis by VisaVerge.com, this timing rule is where many workers run into trouble because employers wait too long to begin the PERM process.

Continuous One‑Year Extensions Under AC21 Section 106(b)

Section 106(b) builds on the 106(a) rule. Once you qualify for that first one‑year extension, you can keep getting additional one‑year extensions as long as the underlying case is still active. That means:

• Your PERM is still pending with the Department of Labor, or
• Your I‑140 is pending or on appeal, or
• Your adjustment of status case (Form I‑485) based on that PERM/I‑140 is awaiting a final decision.

In practice, this removes the six‑year ceiling for many H-1B workers in the green card process. You can extend year by year until the government issues a final decision on your case or until it is denied and no appeal remains.

Three‑Year AC21 Extensions Under Section 104(c)

Section 104(c) helps workers whose I‑140 is already approved, but visa numbers are not available due to per‑country limits or category backlogs. If you are from a country with high demand and your priority date is not current, you may qualify for three‑year H-1B extensions at a time.

Requirements:

• Approved I‑140 immigrant petition, and
• Inability to file adjustment of status because of visa number backlogs (not because of any problem with your case).

These longer extensions provide more stability for families and employers, especially when visa backlogs stretch for many years.

How Current PERM Timelines Affect AC21 Eligibility

To plan AC21 H-1B extensions well, you need to know how long each PERM step typically takes:

Because PERM adjudication alone now averages 472 days, many workers will reach the one‑year pending mark while PERM is still undecided. That delay can actually help them qualify for AC21 one‑year extensions, provided the case was filed early enough in their H‑1B timeline.

Eligibility Examples Using Realistic Timelines

• Example 1 – PERM Filed Early:
  Priya is in her fourth year of H‑1B status when her employer files PERM. Two years later, PERM is still pending and she is approaching the six‑year limit. Because the PERM has been pending more than 365 days before the cap, she can obtain a one‑year extension under Section 106(a), and further one‑year extensions under 106(b) while the case stays active.

• Example 2 – I‑140 Approved but No Visa Numbers:
  Luis already has an approved I‑140 based on PERM. However, his priority date is not current because of his country’s backlog. In this case, his employer can request three‑year extensions under Section 104(c), even if his PERM was approved long ago.

Documents and Evidence Employers Should Prepare

When filing AC21 H-1B extensions, employers and workers should gather:

• Copy of the PERM filing confirmation or ETA case details showing the filing date
• Copy of the I‑140 receipt notice or approval notice, if filed
• Evidence that 365 days have passed since the PERM or I‑140 filing, when using Sections 106(a)/(b)
• Evidence of I‑140 approval and visa backlog, when using Section 104(c)
• Standard H‑1B supporting documents, including employer support letter, recent pay records, and proof of maintained status

The extension is requested with Form I-129, Petition for a Nonimmigrant Worker, filed with U.S. Citizenship and Immigration Services (USCIS). Official instructions and the form are available on the USCIS I‑129.

For background on H‑1B classification rules, the main USCIS H‑1B page is also useful: USCIS H‑1B Specialty Occupations.

Step‑by‑Step Overview of the AC21 Extension Process

Workers and employers can use this basic roadmap:

1. Check your H‑1B history
   Confirm how many years of H‑1B status you have used, including any time outside the country if it was recaptured.

2. Confirm PERM or I‑140 filing dates
   Look at the exact dates your PERM or I‑140 was filed. This controls AC21 eligibility.

3. Match those dates to your six‑year limit
   Make sure at least 365 days will have passed between the PERM or I‑140 filing date and your six‑year end date if you are relying on Sections 106(a) and 106(b).

4. Choose the right AC21 path

   • If your PERM or I‑140 is pending more than one year, plan for one‑year extensions.
   • If your I‑140 is approved but visa numbers are not available, request three‑year extensions.
5. File the H‑1B extension on time
   Your employer should file the I‑129 before your current H‑1B status expires. Premium processing may help avoid gaps in work authorization.

1. Keep copies of everything
   Save all USCIS and Department of Labor notices. They will be needed for later extensions, employer changes, or a future adjustment filing.

Job Changes and AC21 H‑1B Flexibility

Standard H‑1B rules tie workers closely to the sponsoring employer. AC21 provides more room to move:

• You can change employers while still in H‑1B status if the new employer files a nonfrivolous H‑1B petition and you otherwise qualify.
• You can continue using AC21 H-1B extensions with the new employer, as long as you still have a qualifying PERM or I‑140 in place.

This flexibility helps workers advance in their careers instead of feeling locked into one job for many years just to keep a green card case alive.

Practical Tips to Meet AC21 Requirements

Workers and employers can reduce risk by following these practices:

• Start PERM early. Begin the PERM process in the fourth year of H‑1B status when possible to give more cushion for the 365‑day rule.
• Track key dates in writing. Maintain a shared timeline listing H‑1B start and end dates, PERM filing date, I‑140 filing and approval dates, and each extension filing date.
• Avoid last‑minute filings. File AC21 extensions well before the current H‑1B status ends to reduce the chance of work interruptions.
• Watch for audits and delays. A PERM audit can add 6 or more months; consult immigration counsel about how this affects extensions.
• Stay in good status. Work only for employers with valid, filed H‑1B petitions. Gaps in pay or unauthorized work can create problems later when applying for adjustment of status.

For employers and workers who want more technical detail on PERM itself, the Department of Labor’s permanent labor certification information is posted at the DOL PERM program page.

AC21 does not make the green card process fast, but it often makes it possible. By filing PERM on time, tracking the 365‑day rule, and choosing the correct section of AC21, many H-1B workers can keep their lives, careers, and families stable in the United States while they wait for a final decision on permanent residence.