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IMMIGRATION OCTOBER 31, 2025 | The Indian Eye 37

AC21 Trap for H-1B Workers Caught in the Green

Card Backlogs and Who Have Changed Jobs

BY CYRUS D. MEHTA AND MAN- is now available. mits a one-year extension as the including petitions withdrawn capturing the priority date from
JEETA CHOWDHARY* Another statutory excep- underlying labor certification by the petitioner or those filed the prior employer’s approved
tion, AC21 § 106(a) (8 CFR § was filed more than one year by a petitioner whose business I-140. It can also be further ar-
-1B status is typically lim- 214.2(h)(13)(iii)(D)) authorizes prior to the sixth year — may terminates 180 days or more af- gued that a PERM labor certi-
ited to six years in up to one-year H-1B extensions when also be unavailable if the priori- ter approval. fication can take between 18 to
Hthree-year increments. a PERM labor certification or ty date has become current and This means that if an indi- 24 months to get approved and
One statutory exception is § I-140 immigrant petition has the H-1B worker has not yet vidual’s I-140 immigrant peti- this can also be used to demon-
104(c) of the American Compet- been filed at least one year be- filed for adjustment of status or tion has been approved and a strate that the failure to file for
itiveness in the 21st Century Act fore the final of the 6th or final sought an immigrant visa within visa number becomes available adjustment of status was beyond
(AC21) (8 CFR § 214.2(h)(13) year in H-1B status. The work- one year of visa availability. for that person’s preference cat- the control of the alien. How-
(iii)(E)), which permits three- er who is ineligible under AC21 This is the AC21 trap egory and country of chargeabil- ever, the USCIS’s decision in
year extensions for workers with §104(c) can rely on this provi- for H-1B workers who have ity, one has only one year to take such cases is discretionary, and
an approved I-140 petition while sion, § 106(a), as the underlying changed jobs. At the moment a the next step, either file an ap- approval is not guaranteed. Of
no immigrant visa number is labor certification supporting visa number becomes available, plication for adjustment of sta- course, the H-1B worker can
available. The worker in H-1B the I-140 petition was filed long the H-1B worker cannot seek a tus while in the United States, also extend H-1B status based
status may change employers before the end of the sixth year. three-year extension and may or apply for an immigrant visa on recaptured H-1B time spent
and continue to obtain AC21 § The problem arises when also not be able to seek a one- through consular processing outside the US before invoking
104(c) three-year extensions so an H-1B worker who has year extension as they cannot abroad. If one fails to apply § 106(a). In the meantime, if
long as an approved I-140 re- changed employers finds that use the prior employer’s I-140 within that one-year period, one the new employer’s PERM la-
mains in place and no immigrant neither provision fits. Once a petition to adjust status and becomes ineligible for further bor certification comes through,
visa number is available. This is visa number becomes available, thus extend H-1B status under H-1B extensions beyond the six- the worker will be eligible to file
the prevailing situation for many § 104(c) no longer supports § 106(a). year limit under the “lengthy ad- an adjustment of status, thus fa-
EB-2/EB-3 workers in back- three-year extensions by defini- 8 CFR § 214.2(h)(13)(iii) judication delay” rule. However, cilitating the extension under §
logged categories—often for tion (its protection ends when (D)(10) provides: USCIS may, in its discretion, 106(a).
years—while they lawfully main- a visa is immediately available), An alien is ineligible for excuse a failure to apply with- The AC21 framework was
tain status through successive § and the H-1B worker typically the lengthy adjudication delay in that one-year period if one designed to preserve status for
104(c) extensions and employ- cannot adjust status through the exemption under paragraph establishes that the failure was professionals navigating the
ers. However, once the priority I-140 petition of the prior em- (h)(13)(iii)(D) of this section due to circumstances beyond lengthy backlogs in the employ-
date becomes current, § 104(c) ployer because the underlying if the alien is the beneficiary of one’s control. ment-based green-card process.
can no longer be used to seek ex- job offer no longer exists. At the an approved petition under sec- Thus, 8 CFR § 214.2(h) Yet, in today’s fluid labor mar-
tensions because a visa number same time, § 106(a)—which per- tion 203(b) of the Act and fails (13)(iii)(D)(10) provides an ex- ket, § 104(c) and § 106(a) do not
to file an adjustment of ception if the H-1B worker can always align with career mobili-
status application or apply demonstrate that the failure to ty, especially with those who are
for an immigrant visa with- file was due to circumstances be- caught in the lengthy green card
in 1 year of an immigrant yond his or her control. When a backlogs. 8 CFR § 214.2(h)(13)
visa being authorized for H-1B worker changes employers (iii)(D)(10) serves as a warning
issuance based on his or and cannot file for adjustment of that timely action must follow
her preference category status because the new employ- or eligibility for further § 106(a)
and country of chargeabil- er has not initiated PERM labor one-year extensions may lapse,
ity. If the accrual of such certification or a pending PERM thus causing the H-1B worker to
1-year period is interrupt- remains unapproved, he or she fall into the AC1 trap where they
ed by the unavailability of may be able to establish “that can neither rely on § 104(c) nor
an immigrant visa, a new the failure to apply was due to § 106(a). An H-1B worker who
1-year period shall be af- circumstances beyond his or her has changed jobs and obtained
forded when an immigrant control.” In seeking a favorable a three-year extension under
visa again becomes imme- exercise of discretion, the H-1B § 104(c) cannot hope to indef-
diately available. USCIS worker would explain that it was initely seek three-year H-1B
may excuse a failure to file impossible to apply for adjust- extensions. They must have the
in its discretion if the alien ment of status within the one- new employer to timely start a
establishes that the failure year period because the new new labor certification so that
to apply was due to circum- employer’s PERM labor certifi- they can apply for adjustment of
stances beyond his or her cation was still pending, and an status within one year of the visa
control. The limitations adjustment of status can only be becoming available.
described in this paragraph filed once the labor certification
apply to any approved im- is approved—followed by the *Manjeeta Chowdhary is an
migrant visa petition under concurrent filing of an I-140 and Associate at Cyrus D. Mehta &
m of section 203(b) of the Act, adjustment of status while re- Partners PLLC.
___________________________________________________________________________________________________________________________________
CYRUS D. MEHTA & PARTNERS PLLC Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Partner of
Cyrus D. Mehta & Partners PLLC in New York City. Mr. Mehta is a member of AILA’s Administrative Litigation
Task Force; AILA’s EB-5 Committee; former chair of AILA’s Ethics Committee; special counsel on immigration

matters to the Departmental Disciplinary Committee, Appellate Division, First Department, New York; member
of the ABA Commission on Immigration; board member of Volunteers for Legal Services and board member of

  New York Immigration Coalition. Mr. Mehta is the former chair of the Board of Trustees of the American Immi-
   
­ gration Council and former chair of the Committee on Immigration and Nationality Law of the New York City
€
‚   Bar Association. He is a frequent speaker and writer on various immigration-related issues, including on ethics,
and is also an adjunct professor of law at Brooklyn Law School, where he teaches a course entitled Immigration
and Work. Mr. Mehta received the AILA 2018 Edith Lowenstein Memorial Award for advancing the practice of
immigration law and the AILA 2011 Michael Maggio Memorial Award for his outstanding efforts in providing
pro bono representation in the immigration field. He has also received two AILA Presidential Commendations in
2010 and 2016. Mr. Mehta is ranked among the most highly regarded lawyers in North America by Who’s Who
2 6th Floor Legal – Corporate Immigration Law 2019 and is also ranked in Chambers USA and Chambers Global 2019 in

    immigration law, among other rankings.

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