8th year H1B extension under RFE and most likely will be denied/ Options for me??

[ousou]

I am currently on an 7th year extension with my school employer (valid until August 2012). An 8th year extension has been filed back to July for which my attorney got an RFE (request for evidence from CIS). We have to respond by the deadline February 22, 2013.

CIS is requesting evidence of an I-140 petition or a pending labor certification for more than 365 days. We have neither. My previous 7th year approved H1B extension with my current employer with the same service center and attorney has been based apparently on my previous labor certification with my former employer who did not proceed to sign my I-140 petition.

The fact is my previous 7th year H1B extension with my current employer has been filed and approved while my previous labour certification with my previous has died. In other words, by the time my attorney has filed for 7th year H1B extension, my previous labor certification has died. Yet, I have been granted a 7th year H1B extension.

Today we are requesting an 8th year H1B extension which for which wehave gotten an RFE to respond by February 22, 2013

My attorney has planned to respond near the deadline. We have neither a pending labor certification for more than 365 days nor a filed and approved I-140 petition. Most likely, our request for an 8th year H1B extension will be denied.

My attorney strategy is to proceed as planned with my current employer with advertisement and recruitment process (PERM process) and to complete a new labor certification and to file an I-140 petition.

At the same time, there is no appeal for H1B extension. My attorney plan to seek a writ habeas corpus in federal court and ask a judge to rule in our favor. That CIS memorandum carries practically no legal weight. One of this memorandum states that CIS will not extend an H1B beyond the 6th year where the labor certification expires without the filing of an I-140. That there is no statute or regulation to support this. Rather, CIS has issued their own "opinion" of how these matters should be handled. This is in violation of the APA (administrative procedures act).

I do not know if it's going to work and if the judge will rule in our favor, not to mention the financial burden with additional legal fees and expenses.

I doubt that my current process of labor certification will be completed and my I-140 approved by the time my H1B extension will be probably denied by CIS (April). I-140 could be premium process but not the labor certification and it might take time. Not to mention an eventual audit.

It's a race against the time for me as most likely our request for extension will be denied with calculation around April 1st 2013. From which point I will be effectively out of status? Is it going to be from CIS decision about this request for extension or will I have 180 days from the decision before being out of status. I also heard that I will have 180 days to leave country.

How about the 240 day rule saying when an extension of stay is timely filed, during the pendency of adjudication, the 240 days rule kicks in ( I can continue to work for my current employer). Could I use it in addition of my 180 days to gain time before being out of status?

What are my options here???

I do not want to leave the country and stay one year in my country and to re-enter USA with a new 6 years H1B term if granted abroad even though my employer is not ruling out this option.

My wife is under F1 status with good standing and records. She is going to school here. Could I transfer and change status without leaving the country from H1B to F2 as my wife dependant and to tansfer back from F2 to H1B and to return to teaching shorty with my current employer?

How changing status from H1B to F2 and vice versa back will impact my current labor certification process by switching status back and forth? If this option is possible and has no impact on my labor certification process, I should then consider that. That's why knowing from which day I will be really out of status will help to plan accordingly.

I am just trying to anticipate down the road with my options worth case and to prepare. Any help or advices will be greatly appreciated as time is definitely running against me.

Thank you.

 

[nkm-oct23]

What do you mean "labor certification has died"?. Did your previous employer hire someone based on that certification?

 

[ousou]

What do you mean "labor certification has died"?. Did your previous employer hire someone based on that certification?

Dear nkm,

Thank you for your reply, what I meant about "labor certification has died" is that my attorney has filed my 7th year H1B extension last year with my current employer based on a previous approved labor certification with my former employer. That 7th year H1B extension got approved.

The irony is that by the time my attorney filed that 7th year H1B extension, the approved labor certification from my former employer has expired as my former employer did not want to proceed and sign the I-140.

That former labor certification from my former employer has expired on 05/07/2011 and my attorney filed for a 7th year H1B extension on 06/30/2011.

It seemed somehow I got approved for a 7th year H1B extension with my current employer. And here we are being asked an RFE under the same service center for an 8th year H1B extension. The same service center that approved my 7th year H1B extension.

I asked the question to my attorney who told me that at the service center sometimes they don't really know what they do and somehow I got approved for that 7th year H1B extension!!!!!!!!!!!!

 

[whitemimauz3]

I do not think you can even file 8th year H-B in absence of any proof to support with any filed and pending labor certification. This would amount to frivolous petition because when you file h-1b you should have some basis to extend, either it should be within 6 years allowed or labor certification should have been filed before the kick in of 6th year or approved I-140. You dont have neither. I would say you were lucky to get 7th year extension in absence of any proof to support. Your best would be file 8th year extension under regular processing, again if they look for preliminary evidence at time of filing, your petition might be rejected citing no basis to file. In case if it gets accepted, you literally have to run against time to provide proof of labor certification filing or i-140 approval when they raise
RFE.

 

[ousou]

They did raise an RFE for my 8th year H1B extension request/options???

Thank you for your answer. They did raise an RFE based on my 8th year H1B extension. Labor certification is in process (advertisments process with school). We have to respond to the RFE by end of April 2013. We have neither I-140 approved or Labor certification filed and pending more than 365 days. Most likely 8th year extension will be denied early April 2013. Should I stop working with my school employer from the day we got the denial, or will I have 180 days before being out of status from that day?

What are my options? Could I change status switching from H1 to F2 as dependant of my wife who is under F1 status and later to switch back from F2 to H1 without leaving the country? How would it impact my labor certification process right now with the school if I change status from H1 to F2. When is a good timeline to do it eventually for me while I am in status right now?