(UNITED STATES) For many workers on H-1B visas, the sixth year feels like a cliff edge. The law sets a normal six-year maximum for H-1B status, and reaching that limit while your green card is still in process can put your job and life in the United States at risk. An approved I-140 petition can turn that cliff into a bridge. Under AC21 (the American Competitiveness in the Twenty-First Century Act), an approved I-140 often allows three-year H-1B extensions beyond the six-year cap so you can stay and work while waiting for your green card.
According to analysis by VisaVerge.com, these AC21 rules are now one of the main tools that keep long-term H-1B workers in lawful status when visa backlogs grow. The basic idea is simple: if the delay is because no immigrant visa number is available for your category or country, the law doesn’t punish you for that wait.
Below is a step-by-step look at the typical journey from the start of the green card process through H-1B extensions beyond six years, with a focus on what you need to do, what your employer does, and what to expect from U.S. Citizenship and Immigration Services (USCIS).
Stage 1: Early H-1B Years and Planning for the Green Card
Most workers spend the first 2–3 years of H-1B status focused on the job. Still, by the fourth year, it’s wise for both you and your employer to discuss green card sponsorship if you plan to remain long term.
Key tasks and reminders:
– Track your H-1B start date and the approaching six-year limit.
– Ensure each H-1B extension is properly filed by your employer on Form I-129.
– Talk with your employer and, if possible, an immigration lawyer about PERM and the immigrant petition timeline.
For basic H-1B rules, see USCIS’s official H-1B page: https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-occupations.
Stage 2: PERM Labor Certification and the 365-Day Rule
For most EB-2 and EB-3 workers, the first step is PERM labor certification with the Department of Labor. PERM processing can take many months.
Important AC21 protection:
– If your PERM or your I-140 petition has been filed and pending for at least 365 days, you may qualify for one-year H-1B extensions beyond six years — even if the I-140 is not yet approved.
Typical timeline:
– Recruitment and preparation: 2–4 months
– PERM processing: often 6–9 months or more
Responsibilities:
– Employer: file PERM and track its progress.
– You: keep your H-1B valid and retain copies of all approval and filing notices.
– Note: the 365-day mark from PERM or I-140 filing becomes crucial if you reach the six-year cap while waiting.
Stage 3: Filing and Approval of the I-140 Petition
After PERM certification, your employer files Form I-140 in the EB-1, EB-2, or EB-3 category.
What to expect:
– USCIS processing can take several months; premium processing may speed this up.
– Approval gives you a priority date, which determines your place in line for a green card.
AC21 and three-year extensions:
– You must have an approved I-140 petition.
– Your priority date must not be current in the Visa Bulletin’s “Final Action Dates” chart.
– If both conditions apply, AC21 allows three-year H-1B extensions beyond six years.
How it’s requested:
– Your employer typically files Form I-129 to request the additional three-year extension under AC21, citing the approved I-140.
Stage 4: Reaching the Six-Year Limit and AC21 Extensions
Timing is critical as you approach the end of year six.
Recommended actions:
1. At least six months before your H-1B expiry, have your employer file the next H-1B extension.
2. If your I-140 is approved and your priority date is not current, your employer can request a three-year AC21 extension.
3. If your I-140 or PERM has been pending 365+ days, your employer can request a one-year extension instead.
USCIS review focuses on:
– Proof of approved or pending I-140 (or pending PERM).
– Your current H-1B status and job details.
– That the filing employer is the same or related to the one that sponsored you (except when changing jobs — see next stage).
Stage 5: Changing Employers and Porting Your Priority Date
AC21 provides protections if you change jobs after I-140 approval.
Key points when changing employers:
– The new employer files a new I-140 in your EB category.
– You can keep (port) your priority date from the previous approved I-140.
– If the earlier I-140 has been approved for at least 180 days, you typically can:
– Request H-1B extensions based on that earlier approval.
– Support your spouse’s H-4 EAD eligibility.
Even if the previous employer withdraws the I-140 after 180 days, you usually retain the priority date and the right to use that approval for H-1B extension purposes. This allows many workers to change jobs without losing their place in the green card queue.
Stage 6: “Indefinite” Extensions While Waiting for a Visa Number
Backlogs mean many workers wait years after I-140 approval before filing Form I-485 to adjust status.
Current USCIS practice allows:
– Multiple one-year H-1B extensions if PERM or I-140 has been pending at least 365 days and remains pending or approved.
– Repeated three-year H-1B extensions if you have an approved I-140 and your priority date is still not current.
In practice, this can result in “indefinite” extensions beyond six years provided:
– You have not adjusted status or received an immigrant visa.
– The green card process remains active.
Each extension must still be filed and approved, but AC21 keeps the path open while you wait.
Stage 7: Spouse Work Authorization and Family Planning
An approved I-140 can open work authorization for your spouse.
H-4 EAD basics:
– Your spouse in H-4 status may apply for work authorization via Form I-765 if you have an approved I-140 or qualify for AC21-based H-1B extensions.
– H-4 EAD provides a second household income while you wait through long green card delays.
This benefit is particularly important when your career depends on long-term H-1B extensions.
Stage 8: When Your Priority Date Finally Becomes Current
When the Visa Bulletin shows your priority date is current in the Final Action Dates chart, the AC21 justification for three-year extensions changes.
Recommended next steps:
– File Form I-485 for adjustment of status as soon as it’s reasonable to do so.
– After filing I-485, you and your family move to I-485 pending status, enabling separate work and travel documents.
Warning:
– If your date is current but you delay filing I-485 for too long, USCIS may challenge new AC21-based H-1B extensions because AC21 is intended for those unable to file I-485 due to visa unavailability.
Don’t assume indefinite extensions will last forever. If your priority date becomes current, file I-485 promptly; delays can undermine AC21 protections and risk losing extended status.
Critical: Once the priority date is current, continue promptly with I-485 filing to avoid undermining AC21-based extension eligibility.
Stage 9: Common Timing Scenarios You Might Face
Typical real-world paths:
- I-140 approved in year 5; priority date not current
- Employer files a three-year H-1B extension under AC21, extending you into years 7–9.
- PERM filed late; still pending 365+ days by end of year 6
- Employer files a one-year H-1B extension, and may continue yearly until PERM and I-140 are decided.
- Change of employer after I-140 approval (180+ days)
- New employer files H-1B extensions and a new I-140, keeping your old priority date and preserving AC21 protections.
Quick Reference Table
| Situation | AC21 Relief Available | Typical Extension Length |
|---|---|---|
| PERM or I-140 pending ≥365 days at year 6 | Yes | One-year extensions (renewable) |
| I-140 approved and priority date not current | Yes | Three-year extensions (renewable until date becomes current) |
| Priority date becomes current | No (AC21 basis ends) | File I-485; switch to I-485 pending benefits |
Final Takeaways
- AC21 is a crucial protection for long-term H-1B workers facing visa backlogs.
- Key milestones to monitor: H-1B start date, PERM filing, I-140 filing and approval, and your priority date in the Visa Bulletin.
- Maintain documentation of filings and approvals, coordinate closely with your employer and immigration counsel, and file extensions timely (ideally six months before expiry).
- Use AC21 protections to preserve status while pursuing mobility and family stability through the green card process.
AC21 protections allow many H-1B workers to extend status beyond six years when the green card process is delayed. If PERM or an I-140 has been pending 365 days, one-year H-1B extensions are possible; an approved I-140 with a non-current priority date can justify renewable three-year extensions. Workers may retain priority dates when changing employers after 180 days. Timely filings, employer coordination, and immigration counsel help preserve status during lengthy visa backlogs.
