What I wrote is exactly how it is interpreted by William R. Yates, the Acting Associate Director for Operations of the Bureau of Citizenship and Immigration Services (BCIS) on April 24, 2003 as explained below. So there should not be any misunderstanding as to how early you can apply for 7th year extension based on DOJ app. act. Your LC has to have been filed 365 days before you can file for extension. Read on.....
Broader Reach of 21st Century DOJ Appropriations Act
The 21st Century DOJ Appropriations Act amends AC21 to grant H1B status holders extensions beyond the normal six-year limit in cases of lengthy adjudication of either labor certifications or employment-based (EB) immigrant petitions (I-140). Under AC21, eligibility arises when 365 days or more have passed since the filing of both the labor certification and the I-140 petition or of the I-140 petition, alone. The 21st Century DOJ Appropriations Act extended the benefit of being able to file H1B extensions beyond six years to those who merely filed a labor certification that has been pending for 365 days or longer. The Yates Memo provides that, in order for the person to benefit under the labor certification filing requirement, the individual must qualify on or after November 2, 2002.
H1B Extension Only Allowed after LC Pending for Over a Year
The Memo states that the H1B extension petition must have been filed after the 365 day-mark of the filing of the labor certification or I-140 had passed. Otherwise, the foreign national does not qualify for the one-year incremental extensions beyond the 6th year. This is an important clarification. Under this Memo it is not possible to file the H1B petition prior to the 365-day point while asking for approval for a future date, by which the 365-day point will have been reached. Further, Mr. Yates states that the request for the H1B extension of status must establish that the foreign national is in valid H1B status at the time that the H1B petition is filed with the BCIS. If the beneficiary is not in valid H1B status, the extension typically will not be approved. While it is generally well understood that extensions require that the person be in lawful status, the language of the law can certainly be read to allow for petition approval for additional one-year increments, even if the person is no longer eligible for an extension.
Under this disappointing interpretation, a foreign national whose 6th year of H1B eligibility ends five days before his/her labor certification has been pending for 365 days does not appear to qualify for the one-year incremental extension, as the person is unable to show s/he was in H1B status at the time s/he is eligible to file for the new H1B. A person in this situation would need to recapture any time s/he may have available, prior to filing the one-year extension. The law speaks in terms of eliminating the six-year limitation if the stated requirements are met. It also speaks of extensions being allowed in these circumstances. It had been hoped that the BCIS would interpret the law more broadly to allow for H1B petition approval, even if an extension of status in the U.S. was not possible. This would have allowed a person who reached the end of his/her six-year point to depart the U.S. and then return for additional time on H1B once the 365 days were reached.
What this means for MurthyDotCom and MurthyBulletin readers is that it is necessary to file the labor certification or the I-140 petition a month or so before reaching the fifth year in their H1B status. This enables them to file the H1B extension after they have reached the 365-day requirement, without cutting it too close. For example, now if the 365-day point is on the exact day that the I-94 expires, one cannot file the H-1 petition on the 360th day and request a start date at the 365-day point. Under the Yates Memo, it is now necessary to wait until 365 days have elapsed since the filing of the labor certification. If a person waited to file the LC until the last minute, for whatever reason, it could be disastrous given possibilities of human error, computer issues, illness, accidents, weather and overnight mail delivery concerns, etc.