USCIS has just released a Memorandum providing guidance for non-immigrant workers seeking additional periods of admission beyond the H-1B visa six year maximum based on their applications for permanent residence. This memo clarifies that non-immigrant workers who previously exceeded the maximum six year period of H-1B visa status may take advantage of the AC21 H-1B visa extension provisions regardless of whether they currently hold H-1B visa status. Thus, a non-immigrant worker who changed status from H-1B to TN because of the six-year maximum restriction may change back to H-1B visa status and obtain additional periods of H-1B stay based on a qualifying pending or approved labor certification or immigrant worker petition.
Prior H-1B workers currently holding TN status who wish to submit a change of status petition back to H-1B visa status based on this new policy clarification should be able to do so without being subject to the H-1B visa cap. H-1B visa petitions submitted on behalf of individuals who were counted toward an H-1B cap within the past six years who have not left the U.S. for more than one year since obtaining H-1B status are exempt from the cap. See INA § 214 (g) (7).
For more information on this clarification in USCIS policy, see the attached Interoffice Memorandum by Michael Aytes, Associate Director, Domestic Operations, USCIS.