Based on new Yates memo - Can I invoke AC21 and get H1 extension?

toprasad said:
http://www.immigrationportal.com/attachment.php?attachmentid=15503

Based on a thread in H1-B forum, I was wondering if it fits my case
I have completed 6 years of H1-B and have been currently on O1.
My labor is pending at BEC for more than a year.
Can I invoke AC21 and move to H1-B from O1 visa?

Any experiences/thoughts?
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O-1 does not have 6 year limit one can get O1 extensions in 1-year increments. change from O1 to H1 has nothing to do with AC21. you invoke AC21 with pending I-485
 
Thx for the response.

Yes, O-1 has no 6 yr limit but it restricts change of jobs.
It is an ordeal to re-apply for new O-1 in terms of documentation and company.

You are right, I didn't mean invoke AC21 for 7th year extension.
Is the following feasible?
- Change from O-1 to H1-B, since labor is pending for > 1yr
- Get a 1 yr extension in H1-B
- After 140 approval, get 3 yr H1-B since visa numbers are not available
 
united nations and other gurus - I am asking this question again because I keep getting inconsistent answers from attorneys and from people here in the forum.

The all important question for me now is whether I can extend my H1B beyond the 6th year with an approved I140 but (now this is important) without being impacted by retrogression (i.e. there are visa numbers available for me to adjust my status). I have read a lot of USCIS memos and asked a bunch of attorneys, including folks at Fragamon and Berry Appleman and Leiden, and all I get is conflicting answers without a proper explaination. Keep in mind that in my case, I don't have a labor that is pending for more than 365 days nor do i have an EB petition that has been pending for more than 365 days; all i have is an approved EB2 I140.

My own attorney which I have a lot of confidence in says that I cannot extend my H1B but since there are so many interpretations out there, I would like to prove him wrong and get my H1B extended while my I485 is pending.
 
Hello United Nation

unitednations said:
It is a quirk within the law that if you are trying to get extension based on 140 approval then you have to be subject to retrogression (you can have a 485 filed but if your date isn't current, you would still qualify).

However, if you aren't subject to retrogression but 140 is approved and labor is older then 365 days then you could use the labor older then 365 days to get extension.

In h-1b petition you would have to state how you are eligible to get extension. If you say it is due to 140 approval and you are from such and such country and subject to visa regression then they will give it to you. However, if you are not subject to visa regression then you cannot use that part of the law to justify the extension.

I know a person in similar situation eb2 from indonesia. 140 approved but labor less then 365 days. He cannot get extension based on 140 approval. However, he wants to stay on h-1b. He is using an old labor that old company filed for him to say it is older then 365 days and to give him an extension based on this.
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Thanks for all your help you gaved us so far i have a stupid questions but might be easy for you as you have this vast experiance in the field of Immgration.

My I 140 is approved and got an extension on my H1 B visa this year in sep 06 till sep 07,

I am from India and PD is Dec 2001 EB3 what are the chances of getting my pd current in couple of months as i might have to make a quick move from my existing company and join some other company.

since the big hurdle of April 2001 is passed and now thw current number is May 8th 2001 in india EB3.

Please advice.


Best Regards

Saburi
 
saburi said:
I am from India and PD is Dec 2001 EB3 what are the chances of getting my pd current in couple of months as i might have to make a quick move from my existing company and join some other company
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Zero!
 
Current with PD Transfer but retrogressed without

unitednations said:
It is a quirk within the law that if you are trying to get extension based on 140 approval then you have to be subject to retrogression (you can have a 485 filed but if your date isn't current, you would still qualify).

However, if you aren't subject to retrogression but 140 is approved and labor is older then 365 days then you could use the labor older then 365 days to get extension.

In h-1b petition you would have to state how you are eligible to get extension. If you say it is due to 140 approval and you are from such and such country and subject to visa regression then they will give it to you. However, if you are not subject to visa regression then you cannot use that part of the law to justify the extension.

I know a person in similar situation eb2 from indonesia. 140 approved but labor less then 365 days. He cannot get extension based on 140 approval. However, he wants to stay on h-1b. He is using an old labor that old company filed for him to say it is older then 365 days and to give him an extension based on this.
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Unitednations,

I have two 140's (EB-2 and EB-3) approved and transferred priority dates to file 485. My 6-year limit will be over in mar 07. I am considering filing 3-year extension based on one of the approved 140's. Is this legal ?
 
unitednations - thank you. your explaination made sense and concurred with that of my own attorneys - i just had to double check since so many attorneys had diff opinions. its amazing that there are tons of attorneys out there who doesn't know shit about the minute details on immigration law

looks like my backup plan to piggyback on a H1B is screwed; will just have to hope that i don't run into problems with my 1485 and that I get my EAD card in about 6 weeks from now. filed mine on 12/18 and with the things currently going on at TSC, I might just get lucky
 
I agree that getting off H1B is bad idea, but I don't think i have a choice. Correct me if i am wrong, the latest USCIS memo which allows one to get back on H1B status would not be of help to me.

My sixth year will be up come mid February 2007. I don't have an old labor that i can piggyback on in order to qualify under the "more than 365 day" rule. In additon, i am not subject to retrogression, hence I don't qualify under the "approved I140 rule". Also, i have not left the counrty for the past 7-8 years, so i cannot recapture any lost H1B time as well.

So, what can i do? I need some help.


unitednations said:
In my mind it used to be a big risk to get off h-1b until person ultimately got greencard approved. In some cases uscis would deny/revoke approved I-140's due to being approved in error or revocation because of company issue.

If a person had gotten off h-1b and six years was finished then person was really in trouble.

California service center would allow a person to get back on h-1b because there were two parts of ac21 that were worded differently. One was saying to "extend". This part basically said that you can only get 7th, 8th year if you are currently on h-1b. If you are not currently on h-1b then to get back on you would have to go out of the country for more then one year to get back on h-1b.

However, there was another part that said if you qualify for ac21 then you were not subject to the cap. If you weren't subject to the cap then you didn't need to go out for one year to get back onto h-1b.

Vermont, Texas and Nebraska in adjudicating h-1b's followed first paragraph. California followed second paragraph.

However, now USCIS clarified in their memo that they will allow you to get back onto h-1b even if you get off of it and six years is finished. Note: to do this you would not get I-94 card (you would have to go for visa stamping); also if something happend to your existing 140; you would have to appeal it or get another labor which met ac21 criteria.
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unitednations said:
If something should go wrong then you would have to get substitute labor which was older then 365 days prior to the expiry ofyour h-1b.


Not an ideal situation but doable.
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Hi Unitednations and all,
I would appreciate if you can provide some information for my situation
whether I can get back on H1B or not.

In 2004 Feb, I had 15 months left for my H1 to reach 6 years.
I submitted all documents for applying for EB3 Labor to my then employer.
But the employer didn't file the labor in time(before 365 days of H1 expiry), so I was not able to extend H1 beyond 6 years. Since it was there mistake(not to file labor in time), they referred me to another company which provided me a substitute EB3 labor(PD: Apr 2002).

New company applied 140/485 concurrently, 140 approved in Jan 2005, 485 pending due to retrogression and I started working on EAD.

Few months ago, I switched employer using AC21.
So, I am working on EAD using AC21 for a new employer.
Can the new employer file for H1 extension for me based on this new memo(substitute labor is with PD 2002). I want to get back on H1 to be on safer side in case somethig goes wrong with pending 485.
 
unitednations said:
You haven't exhausted your six years yet of h-1b status. Therefore, you can recalaim the unused time and get the extension beyond six years.

Note: you will not get new I-94 card. You will have to go for visa stamping.
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Thanks a lot Unitednations, I wll consult my attorney and take necessary steps.
 
unitednations said:
If something should go wrong then you would have to get substitute labor which was older then 365 days prior to the expiry ofyour h-1b.


Not an ideal situation but doable.
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I emailed my lawyer, he said with approved I-140 and not subject to retrogression, one still can get 7-year's extension on his own approved labor. But he had been wrong on severl things in past.
 
unitednations said:
You have to ask the question very explicitly.

If you say, I am not subject to retrogression; my I-140 is approved and the underlying labor is less then 365 days from the expiry of my six years; can i get extension of h-1b?

If he says, yes then ask him to explain it in accordance with ac21 law.

If he says he can still get the extension then he does not know what he is talking about.
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Ok, I will ask him again,
does the status of underlying labor has to be pending? what if the status is approved, will that make a difference?
 
somebody was telling me for the I-140 approval based 3 year increment....
one does not care ....if the labor is pending less than 365 days from the 6 year clock of H1B...Isn't it?

- H1B Increment based on LC - requires 365 days prior..
- H1B Increment based on I-140 - does not required 365 days prior....
 
There are a lot of half ass lawyers out there who don't know crap about H1B extensions beyond the 6th year.

UN is correct. The AC21 law allows H1B extensions to those impacted by long labor procession times, long I140 adjudications and retrogression. So, you can only get an extension if

1) you have an approved I140 but you are subject to retrogression (i.e. unable to file I485 because of the unavailability of visa numbers) OR
2) your I140 or labor certification has been pending for more than 365 days.

And that's it, even though a lot of attorneys (trust me, i called like about 6 and I explained to them that i am not subject to retrogression) will tell you that you can get 3 year extensions with an approved I140 whether or not you are subject to retrogression.
 
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