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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         mits a one-year extension as the   including petitions  withdrawn   capturing the priority date from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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