How AC21 104(c) Extends H-1B Status Beyond Six Years

Section 104(c) of the American Competitiveness in the Twenty-First Century Act (AC21) lets an H-1B worker extend status beyond the standard six-year cap in increments of up to three years, provided the worker has an approved employment-based immigrant petition and cannot finish the green card process because of per-country visa limits.¹ Without it, workers born in countries with heavy backlogs, mainly India and China, would have to leave the United States simply because the queue outlasted their visa.

The six-year H-1B limit is usually granted as an initial three-year admission and one three-year extension.² Once used, the default rule requires a full year abroad before returning in H-1B or L status.¹ Section 104(c) is the escape hatch for workers who already have an approved I-140 but are stuck in a retrogressed queue.

Who Qualifies for a 104(c) Extension

Three conditions must all be met.

The worker must be the beneficiary of an approved Form I-140 immigrant petition in the EB-1, EB-2, or EB-3 category.³ A pending I-140 does not count. USCIS has confirmed the petition must be approved before the worker can rely on this provision.⁴

The worker must be unable to complete the green card process solely because of per-country visa limits. Each country is capped at roughly 7% of employment-based green cards issued each year, which builds long queues for workers from high-demand countries. The employer has to demonstrate this visa unavailability as of the date the extension petition is filed.¹

The worker must be in valid H-1B status or otherwise eligible for an extension at the time of filing. The six-year cap is what makes 104(c) relevant; standard extensions run out at that point.

The statute uses the phrase “one-time protection,” but USCIS has clarified that 104(c) extensions can be granted repeatedly in up to three-year increments for as long as the worker remains eligible.⁴ A worker whose priority date stays retrogressed for fifteen years can keep renewing every three years.

How 104(c) Differs From Section 106(a)

AC21 contains a second beyond-sixth-year provision, and confusing the two is a common filing mistake. Section 106(a) applies when a labor certification or I-140 petition has been pending for at least 365 days before the sixth year runs out. Its extensions come in one-year increments and continue until USCIS makes a final decision.⁴ The labor certification also has to still be valid at the time of filing.¹

Section 104(c) requires an already-approved I-140 and applies specifically when the per-country cap is what is blocking the green card. Extensions come in up to three-year increments, which means fewer renewals over time.¹ Many workers start on 106(a) one-year extensions while the I-140 is pending and switch to 104(c) three-year extensions once the I-140 is approved.

Reading the Visa Bulletin for 104(c) Purposes

The Department of State publishes a monthly Visa Bulletin with two charts: Final Action Dates and Dates for Filing. For 104(c), what matters is whether the worker’s priority date is current under the Final Action Dates chart. If it is not current, the per-country cap is blocking the case and the worker qualifies.

USCIS separately decides each month which chart to use for adjustment-of-status filings,⁵ but that decision does not change the 104(c) analysis. A printout of the current Final Action Dates chart showing the worker’s category and country cut-off is standard evidence in the petition.

How the Employer Files

The employer files the extension on Form I-129, Petition for a Nonimmigrant Worker. USCIS published a new edition dated 02/27/26 and requires its exclusive use starting April 1, 2026.⁶ The petition package should include:

A copy of the I-797 approval notice for the underlying Form I-140.
A printout of the current month’s Final Action Dates chart showing the priority date is not current for the worker’s category and country of chargeability.
Prior H-1B receipt numbers documenting the full immigration history and confirming the worker has reached or is approaching the six-year cap.
An approved Labor Condition Application covering the extended period.
A support letter from the employer citing the 104(c) basis, the priority date, the visa category, and the country of chargeability.

Citing 104(c) explicitly in the petition and cover letter matters. Officers handle high volumes of extensions, and clear labeling reduces the risk of a request for evidence.

Fees

H-1B extension filings involve several separate fees, and missing any one causes a rejection. The base I-129 fee varies by employer size and type. The Fraud Prevention and Detection Fee ($500) and ACWIA fee ($750 for employers with 25 or fewer full-time employees, $1,500 for larger employers) generally apply when H-1B status is first granted; for extensions with the same employer, the employer should verify current requirements against the USCIS fee schedule.

The Asylum Program Fee of $600 applies to Form I-129. Small employers with 25 or fewer full-time equivalent employees pay $300, and nonprofit petitioners are exempt.⁷

Premium processing is optional. As of March 1, 2026, the premium processing fee for H-1B petitions on Form I-129 is $2,965.⁸ USCIS then takes action within 15 business days,⁹ meaning an approval, denial, request for evidence, or notice of intent to deny. Standard processing runs anywhere from two to six months depending on the service center.

Attorney fees typically run between $2,000 and $5,000. The employer is legally responsible for the government filing fees.

Working and Traveling While the Petition Is Pending

USCIS issues a Form I-797C receipt notice with a 13-character receipt number after receiving the petition.¹⁰ If the extension was filed before the current H-1B expired, the worker can keep working for the same employer for up to 240 days while the petition is pending.¹¹ Once approved, USCIS issues a new I-94 reflecting the new period of stay.

International travel during a pending extension carries real risk. The worker must be physically present in the United States when the petition is filed. Re-entry requires a valid H-1B visa stamp; if the stamp has expired, the worker has to apply for a new one at a consulate before returning, and consular timelines are unpredictable. Anyone weighing a trip during a pending extension should talk to an immigration attorney before booking.

Changing Employers on a 104(c) Extension

A worker on a 104(c) extension can change jobs. The new employer files its own H-1B petition and requests the same beyond-sixth-year extension, as long as an approved I-140 still exists and the priority date remains retrogressed.¹ The new employer does not need its own PERM or I-140. An approved I-140 from a prior employer is enough to support H-1B status.

The catch: a former employer’s I-140 supports H-1B status but usually cannot carry the worker through the actual green card. The underlying job offer no longer exists, so the new employer would need to start a fresh PERM and I-140 to give the worker a real path to permanent residence. Many workers end up with valid H-1B status and no active green card process at their current job.

When the Priority Date Becomes Current

Once the priority date becomes current on the Final Action Dates chart, the blocking condition disappears, and future 104(c) extensions are no longer available. At that point, the worker should file Form I-485 to adjust status.

Waiting has consequences. Under the regulations governing the related 106(a) provision, a worker with an approved I-140 who fails to file for adjustment or apply for an immigrant visa within one year of a visa becoming available loses eligibility for the lengthy-adjudication extension.¹ The one-year window is easy to miss during months when the Visa Bulletin swings back and forth. Watch it every month.

If the I-140 Is Withdrawn or Revoked

The approved I-140 is the foundation of every 104(c) extension. If it goes away, so does the basis for the extension.

If the I-140 has been approved for 180 days or more, or a Form I-485 has been pending for at least 180 days, the petition generally remains valid for adjustment purposes even after the employer withdraws it. The worker can also port to a new job in the same or a similar occupational classification.¹²

If the I-140 has been approved for fewer than 180 days, USCIS automatically revokes the approval when the employer withdraws it.¹² The 104(c) basis disappears with it, and any pending or future H-1B extension resting on that petition is at risk. A revocation on substantive grounds (fraud, misrepresentation, or a finding that the worker never qualified) is effective regardless of timing.

Workers thinking about leaving before the I-140 hits 180 days should weigh this carefully. A new employer starting fresh takes time, and the old employer may not keep the I-140 in place.

Family Members: H-4 Status and Work Authorization

Spouses and unmarried children under 21 in H-4 status derive their standing from the H-1B worker. When the principal receives a 104(c) extension, family members file Form I-539 to extend H-4 status to match.¹³ The I-539 can be filed with the H-1B petition or separately. Relationship evidence (marriage certificate, birth certificates) must be included.

Certain H-4 spouses qualify for employment authorization by filing Form I-765, available when the principal H-1B worker has been granted status under AC21’s beyond-sixth-year provisions and is the beneficiary of an approved I-140.¹³ The EAD lets the spouse work for any employer during the extension period.

A significant change took effect on October 30, 2025: DHS ended the automatic extension of EADs when renewal applications are filed.¹⁴ H-4 spouses filing renewals on or after that date do not get an automatic extension while the renewal is pending. File as early as possible, up to 180 days before the current EAD expires.

Children Approaching Age 21

Children in H-4 status lose eligibility at 21, which creates real pressure in long backlogs. The Child Status Protection Act provides a formula that can effectively freeze a child’s age when a visa becomes available.¹⁵ Effective August 15, 2025, USCIS uses the Final Action Dates chart as the sole reference for determining when a visa is “available” for CSPA purposes. The Dates for Filing chart no longer triggers CSPA age protection, even if it allowed the I-485 to be filed. Families with a child close to 21 should get case-specific advice from an immigration attorney.

1
eCFR. 8 CFR 214.2 – Special Requirements for Admission, Extension, and Maintenance of Status
2
Office of the Law Revision Counsel. 8 USC 1184 – Admission of Nonimmigrants
3
GovInfo. Public Law 106-313 American Competitiveness in the Twenty-First Century Act of 2000
4
U.S. Citizenship and Immigration Services. Supplemental Guidance Relating to Processing Forms I-140, I-129, and I-485
5
U.S. Citizenship and Immigration Services. Adjustment of Status Filing Charts from the Visa Bulletin
6
U.S. Citizenship and Immigration Services. I-129, Petition for a Nonimmigrant Worker
7
U.S. Citizenship and Immigration Services. Frequently Asked Questions on the USCIS Fee Rule
8
U.S. Citizenship and Immigration Services. USCIS to Increase Premium Processing Fees
9
U.S. Citizenship and Immigration Services. How Do I Request Premium Processing
10
U.S. Citizenship and Immigration Services. Form I-797C, Notice of Action
11
U.S. Citizenship and Immigration Services. Handbook for Employers M-274 7.5 H-1B Specialty Occupations
12
U.S. Citizenship and Immigration Services. USCIS Policy Manual Volume 7 Part E Chapter 5 – Job Portability after Adjustment Filing and Other AC21 Provisions
13
U.S. Citizenship and Immigration Services. Employment Authorization for Certain H-4 Dependent Spouses
14
U.S. Citizenship and Immigration Services. DHS Ends Automatic Extension of Employment Authorization
15
U.S. Citizenship and Immigration Services. USCIS Updates Policy on CSPA Age Calculation