7th Year Extension Question

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Want GC Soon

Registered Users (C)
Hi,
Quick Question: I understand that 7th year extension is given only for persons who have Labor Pending with INS more than one year, is it the only way to get the 7th year extension done?

Here is the scenario:

A friend of mine received an RFE recently from INS based on the below circumstances.

One of my friend had filed his Labor 2.5 years back and got his labor approved in 7 months. His 140 was filed after that and got approved in 4 months. In this scenario, he filed his 7th year extension now and INS had sent him a query saying that the labor was not pending for more than one year(in his case, it got approved in 7 months).

Does it mean to say if the labor has already been approved and if a person still wishes to continue working on H1B on 7th year is not possible?

How about a person who has Labor Approved(with in one year or substitution labor), I140 approved and where he tries to file a 7th year extension that his GC is still processing and I485 pending.

How can we respond to the above query?

Would INS approve the 7th year based on pending I485? Please throw all your suggestions and comments..
 
Want GC Soon said:
Hi,
Quick Question: I understand that 7th year extension is given only for persons who have Labor Pending with INS more than one year, is it the only way to get the 7th year extension done?

Here is the scenario:

A friend of mine received an RFE recently from INS based on the below circumstances.

One of my friend had filed his Labor 2.5 years back and got his labor approved in 7 months. His 140 was filed after that and got approved in 4 months. In this scenario, he filed his 7th year extension now and INS had sent him a query saying that the labor was not pending for more than one year(in his case, it got approved in 7 months).

Does it mean to say if the labor has already been approved and if a person still wishes to continue working on H1B on 7th year is not possible?

How about a person who has Labor Approved(with in one year or substitution labor), I140 approved and where he tries to file a 7th year extension that his GC is still processing and I485 pending.

How can we respond to the above query?

Would INS approve the 7th year based on pending I485? Please throw all your suggestions and comments..
Click to expand...
From: http://uscis.gov/graphics/howdoi/h1b.htm

How long can an alien be in H-1B status?

Under current law, an alien can be in H-1B status for a maximum period of six years at a time. After that time an alien must remain outside the United States for one year before another H-1B petition can be approved. Certain aliens working on Defense Department projects may remain in H-1B status for 10 years. In addition, certain aliens may obtain an extension of H-1B status beyond the 6-year maximum period, when:

a. 365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant, or


b. 365 days or more have passed since the filing of an EB immigrant petition.

Here 140 is your immigrant petition! Hope it helps.
 
Thanks JK,
So you mean to say that a person who has his Labor approved, his 140 approved and has got EAD/AP cannot get his H1B extended after 6 years if he continues to work for H1B itself until his 485 gets approved.

Also, so should my friend start working on EAD, even though he is working on H1B now and filed for his 7th year extension?

Thanks again for your prompt reply.
 
Want GC Soon said:
Thanks JK,
So you mean to say that a person who has his Labor approved, his 140 approved and has got EAD/AP cannot get his H1B extended after 6 years if he continues to work for H1B itself until his 485 gets approved.

Also, so should my friend start working on EAD, even though he is working on H1B now and filed for his 7th year extension?

Thanks again for your prompt reply.
Click to expand...
Well I cannot comment on that - what he should do. Sometimes people have got one extension after 140 approval(must be in error). Besides getting on EAD/AP after 140 is done is not too risky.

But he/she is almost forced to get on 485 unless he/she has applied LC/140 from other place too.
 
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So, what I understood from your statement is that a person should start working on EAD if his EAD/AP/I140/Labor has already been approved and 485 pending as he has completed his 6 years on H1B.

Even if 7th year is approved, after 140 is approved, is that a mistake from INS for approving the 7th year????

Also my friend has not applied for another LC from any other state...
 
What I understand is that the H visa extension after completing 6 years was introduced to help people who applied for their labor/immigration petition in a timely fashion(more than 365 days before completion of 6 years) and did not get them approved due to no fault of their own.

Since your friend did get approval, extension does not apply.
 
Want GC Soon said:
So, what I understood from your statement is that a person should start working on EAD if his EAD/AP/I140/Labor has already been approved and 485 pending as he has completed his 6 years on H1B.

Even if 7th year is approved, after 140 is approved, is that a mistake from INS for approving the 7th year????

Also my friend has not applied for another LC from any other state...
Click to expand...

So, what I understood from your statement is that a person should start working on EAD if his EAD/AP/I140/Labor has already been approved and 485 pending as he has completed his 6 years on H1B.

Yes.

Even if 7th year is approved, after 140 is approved, is that a mistake from INS for approving the 7th year????

Oversight - I would say. Records are sometimes not in synch. Also I belv they should have jurisdiction if they will do it or not!(like I heard someone got 3 years extension on H1b visa last year after completing 6 years on H1b since her LC was pending > 1 year).
 
7th year extension (or any subsequent year) on H1-B while I-485 (only) is pending, is not a mistake.


The American Competitiveness in the Twenty First Century Act (AC21), in certain circumstances, allows persons in H1B status to obtain extensions of that status beyond the six-year period (usually referred to as "seventh-year extensions"). Sections 106(a) and (b) of AC21 set forth the following two requirements for such extensions: first, a labor certification application must have been filed for the person at least one year prior; and, second, either the I-140 (Immigrant Petition for Alien Worker) must also have been filed and be pending or approved, or else the I-485 must be pending.

Check following link:

http://www.murthy.com/news/UDbrin7y.html
 
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usnycus is right. Here is the exact law:

SEC. 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.



(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--



(1) the filing of a labor certification application on the alien’s behalf (if such certification is required for the alien to obtain status under such section 203(b)); or



(2) the filing of the petition under such section 204(b).



(b) EXTENSION OF H-1B WORKER STATUS- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made on the alien’s lawful permanent residence.
 
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