AC21 and the Three Year H-1B Extension
May 10th, 2010 by Brian D. Zuccaro
The Vermont Service Center (VSC) recently provided information regarding AC21 and requests for three year H-1B extensions. The VSC pointed out that even though an individual may be eligible for a three year extension under AC21, they will still look at overall facts to see if the individual will be needed for a three year period. This issue may come up with consulting companies and H-1B individuals who will work on client projects.
Below please find guidance from the VSC on this issue (AILA InfoNet Doc. No. 10051072 (posted May. 10, 2010):
At the April 6, 2010, VSC Stakeholder’s Meeting VSC advised that eligibility for a three year H-1B extension under AC21 does not guarantee that the petition will be approved for a full three years (AILA Doc. No. 10040832). Rather, VSC is limiting the validity period of H-1Bs based on time period of qualifying employment established by the evidence submitted. VSC is basing this on the following excerpt from the January 13, 2010, USCIS Q&A on “Employee-Employer Relationships” (AILA Doc. No. 10011331).
Q: What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?
A: If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE). Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit petition’s validity to the time period of qualifying employment established by the evidence.
VSC has indicated that if a petition requesting a three year extension does not provide the necessary evidence to grant three years, it will send an RFE requesting further evidence of an employer-employee relationship for the three year period. The VSC Committee advises that all H-1B extension filings should include proof of the employer-employee relationship, both in the past and for the validity period requested by the petition.
