Dr. William:

What is the recent USCIS policy for laid-off H-1B holder to file H-1B extension with change of employer petitions, where the previous employer has laid-off the H-1B holder?

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A:

The AC 21 memorandum stated that once AC 21 regulation is released, it will give a window of 60 days to file a H-1B portability case. The USCIS Service Centers one time had an informal practice to allow from 30 days to 90 days depending on the specific Service Center to file a portable H-1B petition by a new employer using "extraordinary circumstances" exception to the requirement for "timely" filing of extension application in the H-1B regulation.

However, the Service later hardened its leniency practice, even stating that the USCIS would take "no tolerance policy," and lately people have witnessed a massive denial of untimely filed extension applications. For example, the VSC no longer prescribes a "systematic approach" for handling H-1B extension with change of employer petitions where the previous employer has laid-off the alien, and the VSC instructs the officer to deny late filed extension of stay applications/petitions unless the officer determines that the petitioner/applicant has satisfied all four criteria for exception under section 214.1(c)(4). 

In other words, the VSC has made it clear that there is no such leniency policy for any fixed period of time and each case will be determined on its own merits. Accordingly, there are heightened risks involved for people to file a untimely extension petition unless there is indeed a very compelling reason or circumstance involved.