Complicated H-1B situation.. need advice!!

[lostdecade]

Hi,

I have a very complicated situation, and have been getting conflicting answers from various attorneys. I was wondering if anyone on here could help me out.

My situation:

Currently on 5th year of H-1B, visa expires Feb 08
Working at company A, and I have a new job offer from Company B

Company A filed labor cert in 2004 and it was approved last year. I-140 was never filed.

Company B is claiming they can transfer my H-1B and get 7th yr extension based on the approved labor cert from company A. Then they plan to start again and get a new GC through PERM.

My questions are:

1) Isn't the 7th year extension tied in with the original LC approval. If they are considering a new GC application, how will that work?

2) Is it possible to get a 7th yr extension on JUST Labor Approval, with no I-140 filed? It is my understanding the 7th year extension is for PENDING I-140s or other filings. Seeing as nothing is pending, how could I get an extension based off an old, approved LC?

3) Would they have to apply for the 7th year extension before, or after I got my H-1B transferred to the new company?

4) I have read that older Labor approvals will become invalid sometime in January, won't this affect me in some way seeing as their whole scheme is riding on this?

5) It is likely that company A will be angry at my leaving. Could they withdraw the Labor Certification, and nullify the option to use it for an extension, GC etc?

I am very confused about this situation. I consulted another lawyer who evaluated my credentials and said I was a strong candidate for an O-1 visa. I am starting to think that would be a lot less stressful. What do you think?

Thanks to anyone who can offer some advice.. time is running out for me in terms of options and I need to know what to do!

 

[GotPR?]

Hi,

I have a very complicated situation, and have been getting conflicting answers from various attorneys. I was wondering if anyone on here could help me out.

My situation:

Currently on 5th year of H-1B, visa expires Feb 08
Working at company A, and I have a new job offer from Company B

Company A filed labor cert in 2004 and it was approved last year. I-140 was never filed.

Company B is claiming they can transfer my H-1B and get 7th yr extension based on the approved labor cert from company A. Then they plan to start again and get a new GC through PERM.

My questions are:

1) Isn't the 7th year extension tied in with the original LC approval. If they are considering a new GC application, how will that work?
7th year H1 can be obtained based on original LC filing.

2) Is it possible to get a 7th yr extension on JUST Labor Approval, with no I-140 filed? It is my understanding the 7th year extension is for PENDING I-140s or other filings. Seeing as nothing is pending, how could I get an extension based off an old, approved LC?
7th year is based on LC filed more than 365 days ago.

3) Would they have to apply for the 7th year extension before, or after I got my H-1B transferred to the new company?
They should be able to do transfer and extension at the same time.

4) I have read that older Labor approvals will become invalid sometime in January, won't this affect me in some way seeing as their whole scheme is riding on this?
Haven't heard it.. Must be bogus, but pointer ?

5) It is likely that company A will be angry at my leaving. Could they withdraw the Labor Certification, and nullify the option to use it for an extension, GC etc?
They can cancel your LC. Complete the transfer before they withdraw/cancel LC.

I am very confused about this situation. I consulted another lawyer who evaluated my credentials and said I was a strong candidate for an O-1 visa. I am starting to think that would be a lot less stressful. What do you think?

Thanks to anyone who can offer some advice.. time is running out for me in terms of options and I need to know what to do!

.

 

[lostdecade]

Hey GotPR, thanks a lot for the reply

Here's the link about Labor Certs expiring in January:

http://www.murthy.com/news/n_palc08.html

"The expiration of pre-July 16, 2007 labor certifications on January 12, 2008 will impact H1B extension eligibility for some. Once a labor certification has expired, it is unlikely that an H1B extension beyond the six-year limitation will be granted, based on that labor certification. Thus, persons relying upon older labor certification approvals that have not and will not move forward to the I-140 stage should make alternative plans regarding their H1B extensions."

 

[GotPR?]

Oh, OK.. I did not realize that they finally made it a rule.

I need more reseach, but I'm sure that you have to get 7th year H1 before LC goes expired.
I think you had better confirm with lawyers about the 7th year extension as this is the new rule and a lot of things may not be clearly sorted out.

 

[lostdecade]

Ok, I'll check with my attorney, thanks again!

One other question:

If I transfer my H-1B and get a 7th yr extension based off my current company's Labor Cert approval (I-140 was never filed) could I technically wait 6-8 months 'in extension' at the new company before filing PERM for a GC? The reason is that I will be paying for legal fees, and I'd like to see if I settle at the new company before commiting to the GC.

 

[GotPR?]

Your problem is that you may not be eligible to 8th year if you wait ong.
H1 beyond 6 year is possible only if either LC must be more than 365 days old or I140 must be approved. When 7th year comes to end, you may not be able to satisfy one of these requirement if you waited that long(And old LC has been long expired because of the new rule).
Talk to lawyers for the options.

 

[lostdecade]

Your problem is that you may not be eligible to 8th year if you wait ong.
H1 beyond 6 year is possible only if either LC must be more than 365 days old or I140 must be approved. When 7th year comes to end, you may not be able to satisfy one of these requirement if you waited that long(And old LC has been long expired because of the new rule).
Talk to lawyers for the options.

Thanks once again for your help