All H-1B\'s with 6yrs ending --- Pls do yourself a favor and read this

N

nybanker

Registered Users (C)
Folks - I just read the below message on the NYC RIR board and thought it would be of immense value to you all. Unless, Im totally out of the loop and all you people are already aware of this stuff. In any case....here it is....

Most importantly, definitely read the attachment and show it your attorneys, it may be of great help..

Good Luck.
NYBANKER

Posted By: kulkven 5/3/02 10:07 AM
(#259 of 260)
According to AILA InfoNet, Doc. No. 02050231, relased today,
it is possible to apply h1 extension while ur labor is pending.
"INS Agrees to an ‘Alien-Based’ Reading of § 106(a) of the AC21

In a letter dated 4/24/02, the INS’s Director for Business and Trade Services agreed that §106 of the AC21 allows the employer of an H-1B nonimmigrant to seek an extension of stay beyond the 6th year as long as the alien is the beneficiary of any labor certification application or any immigrant worker petition."

This is really good news for the people who applied their labor
in NY, as processing time sucks in NY.

Look at the following attachemt for the letter.

Enclosures: h1extn.pdf
 
No Title

this is somewhat confusing. here the director appears to be saying that since the applicant has a labor approved and I-140 filed for the previous employer and since the new employer has also filed for labor and PD is greater then 365 days, he is eligible for extension. but still not very clear that for cases where the applicant has never had any labor approved but pending for more than 365 days what the INS position will be. better thing would be to know about success in extending H1 beyond 6 years for cases without approved labor.
 
my case fits this category friends!

Friends,

In my case, I worked for Company A
and my Labor was approved and I140 filed in yr 2000
but unforntunately i got laid off.Joined company
B and then moved into Company C in 2001(year).

Now they again filed Labor and still pending..

Now my Q i) Is this a general rule for all states (im in calif)
          so does this apply to my case?
        ii) Do i need to provide documnetation to INS
            about my prev Labor approval and old I140 filing
            and Priority Date?

  Help is appretiated since my H1 expire in Aug 2002

 LifelongH1-laborer..!
 
No Title

I never understood what Mr. Hernandez was trying to refer to. Was he saying that if one worked for Company A and had an approved labour and I140 with Company B could file for an extension??? :(
  In your case, the approved labour and I140 from the previous employer doesn\'t count when you work for a new employer. So what does it mean when you say that you can file for an 7th yr extension based on a approved labour from your previous employer.
  I read the enclosure and it didn\'t make any sense as to what Mr. Hernandez was pointing to. May be we should sent this query to Rajeev Khanna and ask him to sort it out. That would be a great help.
 
Thanks NY Banker

Thanks for posting the Document, NYBanker. It is very useful indeed. I wonder if there are regulations related to this within the INS.

And, would you know what this Doc NO 02050231 says ?. I dont have access to Infonet.

thanks

Immanuel
 
What it means is ..

I believe it applies to situations where Company A files for Labor and I-140, perhaps gets them approved. MEanwhile applicant leaves/gets laid-off from Company A, goes to Company B, files for LAbour and waits and also files for 7th year ext.

Since the Priority date stays with the Alien, the applicant can still use the old priority date but still has to file a new Labour and I-140.

But the law states that it applies to the "beneficary of " an AEC or Immigrant application, and not necessarily with the current employer. So, even if the labor is pending with the current employer, the old Labor and I-140 could still be used for 7 th year extension.

This is my take on it ( Including some wishful thinking :) )

Immanuel
 
Rajiv Khanna Disagrees

This morning I happened to send the query to Mr. Rajiv Khanna about
7th year extn. My lawyer says that the extn can be obtained if the
LC is pending (> 365 days) & not yet approved.

But Mr. Rajiv Khanna disagrees on this.

Pls see the enclosures.
 
extension with approved lc

i spoke to my attorney who says it is possible to extend H1 beyond 6 years with just pending labor as long as it has been pending for more than 365 days. however he has not got any approvals personally nor has he filed for any. i think the first page of the INS document letter does not provide much hope for Labor applicants but the second page says that "as long as a applicant is a beneficiary of any labor application" and not necessarily approved.
 
Check what Attorney Murthy has to say abt H1 extension

This is with respect to the first post of this thread wherein somone was trying to clarify what Mr. Hernandez had to say regarding the 7th year H1B extn when labour has been filed with Company B when you\'re working for Company A. Read..

INS\' Broad Interpretation on H1B 7th-Year Extension Eligibility

We reported in the May 03, 2002 issue of the MurthyBulletin on an opinion letter that our Office received from Efren Hernandez, III, INS Director, Business and Trade Services, regarding an important issue - the ability of persons to obtain H1B status extensions beyond the six-year period. Our article, entitled \'Dormant\' H-1 Petitions Remain Valid is available on MurthyDotCom. Some of our colleagues have also been busy requesting similar INS advisements and have been kind enough to share information.

As regular MurthyBulletin and MurthyDotCom readers are aware, 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. In those cases that do not require the filing of a labor certification, like the national interest waiver cases, the I-140 must have been filed a year prior and the I-140 or the I-485 must be pending.

The question an attorney posed to Mr. Hernandez was whether the INS would approve the seventh-year extension of the H-1 for an employer other than the one that filed the labor certification and I-140. Mr. Hernandez advised that the seventh-year H1B extension is not employer specific. A person can obtain an extension of H1B status with Company B based upon a labor certification and I-140 filed by Company A.

Mr. Hernandez also stated that this interpretation would be "explored" during the process of rulemaking for AC21. That is, the regulations that will eventually interpret AC21 in more detail may change or modify the interpretation now being given by the INS.

This is indeed good news since The Law Office of Sheela Murthy, P.C. has been advocating this approach with the INS since AC21 was passed in October 2000. This interpretation appears to be appropriate and justified under the wording of the AC21 law and may benefit many who have had to change employers due to the current soft economy. We trust that the INS will be consistent in issuing its regulations with the plain meaning of the law that was intended to have a broad and generous interpretation of such gray areas. As always, we thank the INS for their continual efforts to provide clear-cut guidance on matters of policy and interpretation of the law.
 
7th year H1B extension

Just now I talked to INS officer (New York ) on 1-800-375-5283

   She told me that If your employer has applied your labour and it is more then 365 days then you can get 7th year
   extension. Only criteria
   is labour >365 days. No need for I140 to be filed .
   She went to the INS website and read the related law.
   The site is
   http://www.ins.usdoj.gov/graphics/publicaffairs/questsans/H1BChang.htm
   and Question no 14, last para which says that

   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.

   So just for more clarification if any body got their 7th year extension only on the criteria that labour is pending >365
   days please post.

   Thanks.
 
MY Discussion

Hey guys ,
Dont want to sound negative as I am myself in a fix over this problem. Have LC filed in NJ on May -02,2001 and 6 yrs expire in Feb 2003.I called up the INS 1-800 number and after a lot of wait got chance to speak to a so called customer service supervisor. Initially she indicated the same thing as you said i.e., if labor has been filled for more than 365 days I can get 7th year extension. But When I told her that I cant file a petition for Immigrant visa or adjustment of status unless LC is approved she asked me to hold and went to check with somebody. She came back and said although law is worded a bit ambiguously but I cant get approved on 7th year extension just on the basis of filing of LC> 365 An immigration based petition must have been filed and filing for LC is not the same as filing for immigration based visa.
My feeling on this issue IS either we need to talk to somebody whose case is similar to offers and he/she has got his visa approved or some clearcut written directive form INS. Talking to the customer service people does not help much since theirs is not a legal opinion. I am just writing this to make sure that people take necessary corrcetive action and dont assume things.

Best of luck everybody
 
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