7th yr extention - Labor substitution

H

haplabor

Registered Users (C)
Hi Friends,

My Six years on H1-B expire at the end of Feb 2005 and I have a possible future employer that has agreed to substitute a labor for me.

1) Can I do a 7th yr extention based on the LCA date from the previous employer?

2) What happens if the previous employer withdraws my LCA after I resign?

3) Will there be any issues with 8th yr extention in future?

Thanks you million.
 
haplabor said:
Hi Friends,

My Six years on H1-B expire at the end of Feb 2005 and I have a possible future employer that has agreed to substitute a labor for me.

1) Can I do a 7th yr extention based on the LCA date from the previous employer?

2) What happens if the previous employer withdraws my LCA after I resign?

3) Will there be any issues with 8th yr extention in future?

Thanks you million.
Click to expand...

You mention LCA, do you mean to say LC. LCA is for the purpose of H1 and cannot be use for 7th year ext. LC is Labor certification for GC and can be used for 7th year H1 ext. I assume you meant LC.

1> Yes
2> There may be issue, but I am not sure.
3> If your 8th year will be based on your New employer's LC, there will be no issue just because you changed the employment.

I will recommend you 2 approaches.

A> File your 7th year ext with current employer if your LC is more than 365 days old. Get 7th year and then transfer to new employer. If your new employer is going to file new LC, ask you new employer to do it now, before end of Feb, so as you can get your 8th year ext without any problem.

B> As you mention that your new employer is going to substitute a LC for you, if that LC is already 365 days old, ask your new employer to file a transfer and 7th year H1 ext based on that that LC with a proof that you are going to be substituted for that LC.

Best of Luck!
 
Eric,

Thanks for your response. You are right, It is infact LC and it is pre-approved so the new employer wants to apply for 7th yr extention based on LC from old employer and insists 8th yr can be based on I-140 receipt which he has promised to file right away. what do you think?
 
8th year ext

EricS said:
You mention LCA, do you mean to say LC. LCA is for the purpose of H1 and cannot be use for 7th year ext. LC is Labor certification for GC and can be used for 7th year H1 ext. I assume you meant LC.

1> Yes
2> There may be issue, but I am not sure.
3> If your 8th year will be based on your New employer's LC, there will be no issue just because you changed the employment.

I will recommend you 2 approaches.

A> File your 7th year ext with current employer if your LC is more than 365 days old. Get 7th year and then transfer to new employer. If your new employer is going to file new LC, ask you new employer to do it now, before end of Feb, so as you can get your 8th year ext without any problem.

B> As you mention that your new employer is going to substitute a LC for you, if that LC is already 365 days old, ask your new employer to file a transfer and 7th year H1 ext based on that that LC with a proof that you are going to be substituted for that LC.

Best of Luck!
Click to expand...



EricS this my story some what matches with "haplabor" it is little long but i will try to make it shoter please take some time to read.

I was working for a company called XX from 2000 to May 2003 and filed a labor from DE in the mid of Sept 2002. There were some differences between us and i have to leave that company.

I joined another company YY and started working with them from May 2003 my 6 years of H1 expired on July 2004 and my YY employer got me 7th year ext based on XX company LC which is till 2005 July.
Mean while XX company called me and said that they will not give me the labor they filed for me from DE.
The YY employer filed labor from ND as it was current in sept 2003 which is not 365 days before from my 6th year of H1.

Any way i managed to get a substuite labor from a company ZZ in Dec 2004 and i got the EAD and i didnt go on to their payroll as i have some doubt about the ZZ company in other words i am scared to go onto their pay roll(if I140 gets rejected) at the same time i don't want to use EAD too because if I140 get rejected then i have to leave the country immideately.

From all the above story my question is .
1)Can my YY company file for my 8th year ext based on XX companies LC?
2)If answer is "NO" then what would be advise for me?

Please let me know and thanks in advance for spending your valuable time.

Thanks again.
 
cybergc,

First of all, this is my opinion and do consult with your attorney before making a final decision.

First to answer your questions:
1>
----Can my YY company file for my 8th year ext based on XX companies LC?
I think yes, but depends if some one else is substitued on that LC or not by XX. If some one is substitued, you may or may not get your 8th year ext. I do not know in such a case, how USCIS will interpret.

2>
----If answer is "NO" then what would be advise for me?
There are chances of yes, but lets assume the answer is no and this is what I will suggest anyway.

There are 2 cases
a) You want to stay with YY. In this case YY can file 8th year ext for you based on the LC filed by YY in Sept 2003. The way I understand this 365 days rule is that the LC should be more than 365 days old when you file for extension beyond 6th year based on that LC. In my opinion, for 8th year ext, it does not matter if LC was filed 365 days before 6th year limit. It should have been file 365 days before 7th year limit.

b) You want to join ZZ. In this case, 8th yr. ext. depends if the LC on which you are substituded is more than 365 days old before you file for 8th year. Lets say the substitute LC from ZZ was originally filed on March 15 2004. Then you were substitued on it in Dec 2004. Now on March 15 2005, this LC will be 365 days old. So IF you file your 8th year ext, based on this Lc after March 15 2005, showing the proof that you have already been substituted on it, there are very good chances of approval. In case this LC is not 365 days old before you need to file 8th year ext., you may use LC from YY to file for 8th year ext with ZZ.

The key here is that the LC should be more than 365 days old when you file for extension beyond 6th. So for 8th year, it does not depend if it was filed in your 5th year or not.
Hope it helps!
 
haplabor said:
Eric,

Thanks for your response. You are right, It is infact LC and it is pre-approved so the new employer wants to apply for 7th yr extention based on LC from old employer and insists 8th yr can be based on I-140 receipt which he has promised to file right away. what do you think?
Click to expand...

haplabor,
Sorry I was not able to reply to your message earlier. Did you already file your case. I think this is a good approach. Along with 140 receipt, I think it will be good idea to send copy of approved LC also when you file 8th year ext.
 
EricS said:
cybergc,

First of all, this is my opinion and do consult with your attorney before making a final decision.

First to answer your questions:
1>
----Can my YY company file for my 8th year ext based on XX companies LC?
I think yes, but depends if some one else is substitued on that LC or not by XX. If some one is substitued, you may or may not get your 8th year ext. I do not know in such a case, how USCIS will interpret.

2>
----If answer is "NO" then what would be advise for me?
There are chances of yes, but lets assume the answer is no and this is what I will suggest anyway.

There are 2 cases
a) You want to stay with YY. In this case YY can file 8th year ext for you based on the LC filed by YY in Sept 2003. The way I understand this 365 days rule is that the LC should be more than 365 days old when you file for extension beyond 6th year based on that LC. In my opinion, for 8th year ext, it does not matter if LC was filed 365 days before 6th year limit. It should have been file 365 days before 7th year limit.

b) You want to join ZZ. In this case, 8th yr. ext. depends if the LC on which you are substituded is more than 365 days old before you file for 8th year. Lets say the substitute LC from ZZ was originally filed on March 15 2004. Then you were substitued on it in Dec 2004. Now on March 15 2005, this LC will be 365 days old. So IF you file your 8th year ext, based on this Lc after March 15 2005, showing the proof that you have already been substituted on it, there are very good chances of approval. In case this LC is not 365 days old before you need to file 8th year ext., you may use LC from YY to file for 8th year ext with ZZ.

The key here is that the LC should be more than 365 days old when you file for extension beyond 6th. So for 8th year, it does not depend if it was filed in your 5th year or not.
Hope it helps!
Click to expand...

EricS first let me thank you for taking time to reply my questions.

I called my XX employer and found out that labor is still in fedral to get approved and he said i can file for 8th year ext.

Thanks a lot
 
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