365 Days rule inspite of an Approved Labor is debunked?

[sriram1975]

In my case by the time my H1 expired (Oct 19'04), it had been 38 days short of 365 days. My labor was filed Dec 3rd, 2003. My 140/485 was filed in Aug'04 and my H1 was filed in Sep'04.
I was told by many that inspite of an approved labor, it should have been 365 days since you filed your Labor or 140. This is the query I got from USCIS.

The record of proceeding shows that the beneficiary has an I-140 which has been pending for less than 365 days. Also, evidence submitted indicates that the labor certification was only filed on Dec 03,2003 and this petition was filed on Sep 27 2004. As evidence that an application for labor certification (Form ETA-750) has been pending 365 days or more, submit any of the following:

1. a document from a state Workforce agency (SWA) notifying the employer, the employer's representative, the ETA-750, filed on behalf of the H1-B beneficiary, has been pending 365 days or more.
2. a document from one of the DOL's employment and training administration (ETA) regional officesnotifyingthe employer , the employer's representative, or the USCIS that a formETA-750, filed on behalf of the H1-B beneficiary has been pending 365 days or more or
3. a copy of an approved form ETA-750.



Since it says ANY of the 3 things and the third item says copy of an approved ETA-750 people, with similar scenario like me are eligible for 7th year H1 right? Please give me your views.
UNITEDNATIONS: I would appreciate your input too on this as we have already had a conversation about this. Thanks all.

 

[EricS]

In my case by the time my H1 expired (Oct 19'04), it had been 38 days short of 365 days. My labor was filed Dec 3rd, 2003. My 140/485 was filed in Aug'04 and my H1 was filed in Sep'04.
I was told by many that inspite of an approved labor, it should have been 365 days since you filed your Labor or 140. This is the query I got from USCIS.

The record of proceeding shows that the beneficiary has an I-140 which has been pending for less than 365 days. Also, evidence submitted indicates that the labor certification was only filed on Dec 03,2003 and this petition was filed on Sep 27 2004. As evidence that an application for labor certification (Form ETA-750) has been pending 365 days or more, submit any of the following:

1. a document from a state Workforce agency (SWA) notifying the employer, the employer's representative, the ETA-750, filed on behalf of the H1-B beneficiary, has been pending 365 days or more.
2. a document from one of the DOL's employment and training administration (ETA) regional officesnotifyingthe employer , the employer's representative, or the USCIS that a formETA-750, filed on behalf of the H1-B beneficiary has been pending 365 days or more or
3. a copy of an approved form ETA-750.



Since it says ANY of the 3 things and the third item says copy of an approved ETA-750 people, with similar scenario like me are eligible for 7th year H1 right? Please give me your views.
UNITEDNATIONS: I would appreciate your input too on this as we have already had a conversation about this. Thanks all.

From your post, it looks like you already submitted a copy of your approved LC (ETA 750) when applying your 7th year H1 extension.
I think # 3 is also intended to be a proof that LC was filed more than 365 days before. It is evident from the line above "... As evidence that an application for labor certification (Form ETA-750) has been pending 365 days or more, submit any of the following:"

If you do get H1 7th year approved, keep us posted, as this will help others.

 

[sriram1975]

H1 Approved!

My case was approved today! So my Attorney was right after all! UnitedNations thanks for your help. Please note this new interpretation by USCIS.

 

[sriram1975]

Thanks UN. But I'm EB2. So I'm not affected by retrogression yet. If I file for 8 th year H1 in 2 months, and after approval, if my 140 is denied, can I continue to work till end of 8th year?

 

[sriram1975]

Hi Rincy
This is what my Attorney replied when asked about how I'm eligible for 485.
"You are eligible for the 7th year extension since you already applied for
the I-140 and I-485. The rule for applying for the 7th year H-1B extension
is that the Alien Labor Certificate of the beneficiary was filed for over
one year OR the beneficiary's I-140 and I-485 are pending with the CIS."
I dont know what was the exact draft he wrote. My Law firm employees are di(k-heads and act like they are doing my work for free if I ask any questions. But my guess is first time he applied with just approved labor. When replying for RFE he sent receipt of 140/485 filing.
Good luck.