Waitingnwaiting
Your attorney is wrong. Actually, she is correct, you can apply. However, your application will be DENIED.
Again, read AC21. I provided this information before but now I will reference other attorney websites.
Here is a summary of the relevent section from Rajiv Khanna, our host, Jose Latour, and Carl Shusterman:
2. Extension of permissible H-1B period of stay:
(a) Section 106(a) of P.L.106-313 (erroneously cited as 106-396 in reftel) waives the INA 214(g) six-year limit on stay for H-1B aliens as described in the summary. Paragraph (b) provides for the extensions as H-lBs to be in one-year increments beyond the six-year limit until the final determination regarding the alien\'s permanent resident status is made.
(b) There are two points in particular to notice with respect to the provisions described above. One is the need for the delay to be at least one year (365 days). The other is that the provision respecting the extension beyond six years relates solely to the length of stay permitted. It does not automatically extend the validity of the petition underlying that status. Therefore:
(I) The labor certification, immigrant visa petition, or application for adjustment must have been filed before the end of 5 years after entry as an H-1B (at a port of entry or by change of status). Otherwise, the petition (which would have been extended only to six years) would have expired before the 365 days could run. Restated, if the alien\'s six-year period of stay expires before the end of the requisite 365 days, the alien does not benefit from this provision and is simply out of status.
Jose Latour:
NOW here\'s an additional occasion on which H status may be granted in excess of the normal six-year limit: When the employment-based I-140 itself takes over 365 days.
Once the EB immigrant petition (I-140) has been filed with INS and 365 days elapse, according to this guidance, H-1B status will be extended in one year increments until a final decision is rendered on the I-140. Furthermore, the INS states that the Attorney General is "required" to grant these extensions. (Likewise, dependents will be issued extensions based on the issuance of the H-1B extensions.)
Carl Shusterman:
Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition.
Jim
James D. Mills
(formerly Jim M)
Attorney at Law
jdmills@justice.com
732-644-5702