7th year is it possible?

C

chinna74

New Member
Hi,
My 6 years expires in Jan 2004.
My labor petition got approved in less than 6 months and applied for I-140,485 in November 2003 .
The time gap between the labor applied(March 2003) and my 6 years expiration date is less than 1 year,am confused with laws which says:
"To obtain an extension of H-1B status beyond 6-year maximum period, when the H-1B non-immigrant is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of Status ;
and
365 days or more have passed since the filing of a labor certification application, Form ETA -750, that is required for the alien to get employment based greencard, or 365 days or more have passed since the filing of the EB immigrant petition(I-140)".

Am I eligible for 7th year or do I have to go back home.
 
Hi,
My 6 years expires in Jan 2004.
My labor petition got approved in less than 6 months and applied for I-140,485 in November 2003 .
The time gap between the labor applied(March 2003) and my 6 years expiration date is less than 1 year,am confused with laws which says:
"To obtain an extension of H-1B status beyond 6-year maximum period, when the H-1B non-immigrant is the beneficiary of an employment based (EB) immigrant petition (I-140) or an application for Adjustment of Status ;
and
365 days or more have passed since the filing of a labor certification application, Form ETA -750, that is required for the alien to get employment based greencard, or 365 days or more have passed since the filing of the EB immigrant petition(I-140)".

Am I eligible for 7th year or do I have to go back home.
-------------- Just file 7th year H1 with I-485 pending receipt, you can send 7th year H1 extension any time before Jan 2004, I hope you will get I-485 receipt filling receipt in 12-15 days, check with your lawyer for the receipt who filed I-485.
Once the I-485 is filed your status is AOS pending, no need to leave US you may get EAD in 90 days from filing of EAD with I-485, IF EAD not filed file for EAD and AP. As your case is concurrent I-140 and I-485 it is better to maintain H1 status till I-140 is not approved. Better file for 7th year H1 extension
 
I dont think you can apply for 7th year extension, as you dont satisfy the conditions for the same. However, I dont think you need to worry about seventh year extension at all. You dont need an H1 after applying for I-485. For work, you need EAD, and for travel you need advance parole. If your EAD does not get approved by the H1 expiration date, you can take an interim EAD and continue to work. However, you should not continue to work without interim/final EAD or H1.

This is my opinion, and I am not an immigration attorney or expert.
 
I dont think you can apply for 7th year extension, as you dont satisfy the conditions for the same
---- "chinna74 "satisfies the conditions for 7th year extension his I-140 and I-485 has been filed AND pending
--- Go for 7th year H1b because if any RFE for I-140 you may not get EAD or AP till the BCIS officer receives RFE or is satisfied with RFE. Many are getting RFE for I-140 for 3years BS degree from India and educational evaluations and employer ability to pay. Try to maintain H1b status till your I-140 is not approved and play safe
 
Ginnu/Others:
My H1B 6 years expired. I applied for LC 5 months ago and my labor will be approved soon, I am planning to apply for I140/1-485 concurrently. I asked my Lawyer “ Is it possible to apply for 7th year extension based on 140/I-485 case pending”, He said NO.

Is it true?
 
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As you wrote your 6 years EXPIRED it means you are out of status you cannot file 7th year H1 extension. If your 6 years have not expired and you get LC approved before that then you should file I-140 or I-485 immediately once you get receipt of I-140 or I-485 you can file 7th year H1.
what is your status at this time?
 
Thanks Ginnu.

I was out of US for 2-3 months and I appiled for recapturing it ( applied on sept 25, 2003). Still my case is pending with BCIS.
 
1 if the BCIS approves the H1B extension AND you get LC cleared before you hit 6 years AND file I-140 or I-1485 then you can file 7th year H1 extension. Pray that your LC is approved fast, start collecting the documents for I-485, employer should be ready to file I-140 immediately and your lawyer should be ready to file the I-485 and I-140 immediately the day he receives the approved LC copy. For I-485 you have to go for medicals and may take time. You can go for medicals now keep every document ready. If I-485 filling is not possible in short time just file I-140 once you get I-1450 filing receipt file 7th year H1 and I-485. If the LC does not get approved or BCIS does not approve extension you have to leave US.

*** Try to find any approved LC with your Employer if they have and matches will your skills and education at the date of that LC filling. If you can find any LC with any employer file I-140 with labor substitution because in the coming months I expect that DOL and BCIS will be slow because of many holydays and parties.

Even if you have to go back you should have no problem, be happy as you worked for 6 years many went back with out working. GC does not guarantee peace of mind or happiness it is internal. India has v.good IT jobs.
Good Luck!!
 
Ginnu,
Thanks for the information and your advice. Here is my situation. I have completed the necessary documents for I140/I485/AP/EAD. My labor has received from Iowa to Chicago, DOL on 09/02/20003 and still it is pending. DOL started processing Sept. Cases officially now. My case supposed to approved last month itself and many cases approved after my case. DOL hasn’t found any problems for my case so far.

Could I request to DOL to expedite my case? Is there anyway to expedite my case?

I have applied for recapturing for 3 months. If the case is pending more than 3 months, Can I work after the requested time?

As per your statement if labor approved (< 365days), either I140 or I485 case is pending (< 365days), we are eligible to file for 7th year extension. My lawyer is not agreeing it. How can I convince him?
 
Ashkar,

Your lawyer is right. You CANT extend your H1 even if your labor is cleared and you apply for I140/485, before the H1 period is completed. Ginnu's information is incorrect. Same thing applies to chinna74's case too. You dont have to ask anyone for this info. You can look up this info in murthy.com or immigration.com. To extend your H1 beyond 6 years, you need to satisfy the following requirements :

1. your labor (or 140 if you dont need labor) should have been filed at least 365 days ago
AND
2. your I140 or 485 application is pending.

Note the "AND" here. You dont satisfy the condition 1, as you have filed for labor only 5 months ago.

Only option for you is to apply for 140/485 and EAD as soon as you get your LC, and wait for an EAD in India (if you dont get itbefore your new extended H1 expires). You could get interim EAD after 90 days of applying for EAD.

You need to discuss your options with a qualified attorney, as you are in a crucial stage, and you wouldnt want to stay illegally.

By the way, it is only my opinion, and I am not an immigration lawyer.
 
Forgot to mention that if you are able to apply for I485 before the end of H1 period, you would be able to stay in the US legally, but will not be able to work (without EAD).
 
I stick to my post and you can confirm with any good lawyer:
----"chinna74 "satisfies the conditions for 7th year extension his I-140 and I-485 has been filed AND pending
http://www.murthy.com/UD2215.html
***“nshalady” does NOT know that now one can file 7th year H1 IF
LC filed Filed 365 days by ANY employer
OR
I-140 filed and pending
OR
I-485 filed
nshalady visit the link:
http://www.murthy.com/UD2215.html
LC was filed by any employer for you 365 days back AND(this AND has gone now it is now OR) 1 year back the poster should read new guidance from BCIS and congress passed it, he/she quotes Muthy.com or immigration.com. you can talk to Sheela Murthy or Rajiv Khana and if my post is true then “nshalady” needs to update his knowledge reading recent development for 7th year H1 extension

Ginnu,
Thanks for the information and your advice. Here is my situation. I have completed the necessary documents for I140/I485/AP/EAD. My labor has received from Iowa to Chicago, DOL on 09/02/20003 and still it is pending. DOL started processing Sept. Cases officially now.
---- Check the DOL Federal Chicago by punching your employer phone # call in the night time phone# 312 –353-1059 and listen to AVM by punching your employer phone # that he wrote on ETA750A
My case supposed to approved last month itself and many cases approved after my case. DOL hasn’t found any problems for my case so far.

Could I request to DOL to expedite my case? Is there anyway to expedite my case?
-----NO
I have applied for recapturing for 3 months. If the case is pending more than 3 months, Can I work after the requested time?
----- you have filed extension before expiry of your I-94 and current H1b status expiry date, once you file extension and get receipt you are in valid status, if BCIS approces the extension you are fine till expiry date of new H1 extension if Extension is denied you will be out of status. you need valid H1 status to work or EAD,
if you are able to file I-485 and dont get EAD go off the payrole take vacations till you get EAD or go to local BCIS office after 90 days of EAD filing to get IEAD ( if your employer HR is coaprative then they can pay you later if you work they know how to do this)
Once I-485 filed your stay is leggal in US till the date I-485 is not denied
As per your statement if labor approved (< 365days), either I140 or I485 case is pending (< 365days), we are eligible to file for 7th year extension. My lawyer is not agreeing it. How can I convince him?
----- Go to other lawyer and confirm it the regulation for 7th year extension is:
LC filed by ANY employer 365 days back OR (this is not AND) I-140 filed OR I-485 filed. give your lawyer printout of the below link:
http://www.murthy.com/UD2215.html ( ask him did he know that DOJ bill was passed in 2002 and signed as Law by president)
The requirement or evidence you submit for 7th year extension is:
If LC filed 365 days back provide the evidence to BCIS that LC was filed 365 days back the evidence one can submit is SWA or SESA receipt that has PD of LC filling Case # date and your Name on it. The lawyer who files LC he gets that receipt from SESA or SWA
OR
Receipt of I-140 filing
OR
Receipt of I-485 filling.
If your lawyer des not agree to that he just knows to fill up the forms. You provide me the SESA receipt that LC was filed 365 days back OR I-140 filing receipt or I-485 filling receipt and New LCA for H1b from your employer that he can get in 2 days from DOL ( he can get it now in advance that is fax back system) I will get you 7th year extension( no charge to you). Once you have all the above evidence contact me.
 
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Ginnu,
Thank you so much. Now I can able to convince my lawyer. I have one more question.

If the recapturing case is pending more than 3 months, If I want to maintain the legal status after 3 months, Shall I file the form I-539 (application to extend/change nonimmigrant status) for changing status from H1 to B1or B2?
 
ginnu,

Sorry to say this, but you need to read properly before advising people on a situation like this. Read the VERY SAME link that you forwarded properly. It states :
============================================
This provision allows for extensions of H1B status beyond the standard six-year limitation if the person is the beneficiary of a labor certification, which has been filed and pending for one year or longer.
============================================
Note that last year's bill HR2215 was ONLY to remove the condition of a pending 140 or 485. So, "AND" has NOT become "OR". I agree that I was wrong in that AND condition. But the condition 1 mentioned in my previous post STILL REMAINS. and hence ASHKAR does not qualify for a 7th year ext., because he has not applied for labor 365 days ago.

I am not here to argue with you. Just an honest opinion, with the intention that it might help someone in need of it.

I recommend Ashkar send an email to Sheela murthy or Rajeev Khanna to confirm this. Good luck.
 
Ginnu/Nshalady/others:

I took printout from the link http://www.murthy.com/UD2215.html and faxed to my Lawyer.

He is saying that If labor approved (< 365days), either I140 or I485 case is pending (< 365days), we are NOT eligible to file for 7th year extension.

Whether anyone applied for 7th year extension with above condition and it got approved?
 
your lawyer is 200% wrong.
I had LC pending more than 365 days, I filed 7th year extension with letter of NJ SESA that had PD and case # on it and I got 7th year H1b approved in 2 months from VSC


My other friend filed I-485 and just attached I-485 filing receipt and filed 7th year extension he got 7th year extension approved.

Ginnu is correct and you should change your lawyer go to good lawyer who keeps the update of recent BCIS Memo are changed law.

You can read and search many threads, posts for 7th year extension many have got 7th year H1 extension based on LC pending more than 365 days OR I-140 filed or I-485 filed.
 
Chinna74:

Did you talk to your lawyer regarding your 7th year extension?
If not, Please talk to your lawyer and let me know your lawyer's
decision. I would like to clear this point so that it will be useful for me as well as others.
 
Rahee:
I think you misunderstood my statement. Here is my situation.

My labor is not pending for 365 or more days.

My labor applied 5 months ago, if it's approved in next month, I will be filing for I140/I485 concurrently. Will I eligible for 7th year extension with I40/I485 case is pending for less than 365 days?
 
Ginnu,
Thanks for the information again. My lawyer is an american and he works for one state Supreme Court. I will check with other lawyer regarding 7th year extension with I140 or I485 case pending for less than 365 days.


Others:

Anyone applied for 7th year extesion and it got approved with the following conditions:
Labor approved less than 365 days and appiled for I140 or I485 and it is pending for less than 365 days.
 
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