Consular processing (LC not cleared) after H1 6 yrs expiry

S

spt

Registered Users (C)
Hi,

I have applied for LC (RIR-EB2) in NJ. (PD - May 10, 2001). Now Apr 30, 2001 is going on. My H1 6 yrs expires this Nov 2002. But actually I have around 3 months I was out of US (vacation etc., missed during last renewal) which lawyer thinks may not be enough to get my LC cleared to go for 7th year extn. (a side thought.... But if there is anytime left in H1, is the company reqd to file extension for that period ?) Anyway, if I have to leave US in Nov and my LC gets approved during Apr or May 2003 (guessing), how is the next step. Lawyer said it will be consular processing. Also I heard now I-140 and 485 can be filed simultaneously. Since I have to stay for one year out of US (i.e., till Nov 2003), can I finish CP outside and come back in US ? For CP, company has to give any letter saying they need my employment because I will not be in payroll from Nov?. Is there anything I need to clarify with my company ? Please help.
spt
 
Originally posted by spt
Hi,

I have applied for LC (RIR-EB2) in NJ. (PD - May 10, 2001). Now Apr 30, 2001 is going on. My H1 6 yrs expires this Nov 2002. But actually I have around 3 months I was out of US (vacation etc., missed during last renewal) which lawyer thinks may not be enough to get my LC cleared to go for 7th year extn. (a side thought.... But if there is anytime left in H1, is the company reqd to file extension for that period ?) Anyway, if I have to leave US in Nov and my LC gets approved during Apr or May 2003 (guessing), how is the next step. Lawyer said it will be consular processing. Also I heard now I-140 and 485 can be filed simultaneously. Since I have to stay for one year out of US (i.e., till Nov 2003), can I finish CP outside and come back in US ? For CP, company has to give any letter saying they need my employment because I will not be in payroll from Nov?. Is there anything I need to clarify with my company ? Please help.
spt
Click to expand...

If your LC is pending more than 365 days you are eligible for H1 extension on year to year basis. Not much time is needed. Even if you apply now & as long as you have INS receipt it is ok. Unless you want to, there is no need to leave US. That is my opinion. May like to consult Rajiv & other good lawyers.

For further details:
http://www.shusterman.com >> AC-21 >> AC-21: INS's FAQ >> Question 14, 3rd paragraph


Q14: What benefits are available under AC21 to aliens with Immigrant petitions/adjustment applications?

A14: First, § 104 of AC21 lifts the per-country limits on employment-based immigrant visa numbers if the total number of visas available during a calendar quarter exceeds the number used. The Department of State is charged with issuance of these visas and maintenance of priority dates and availability. This issue will not be addressed in INS regulations.

Where the country caps delay an alien's immigration notwithstanding this provision, AC21 also provides for an extension of H-1B status until the alien's adjustment of status application can be processed and a decision made.

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.



In this site see the thread http://boards.immigration.com/showthread.php?threadid=55534
Specially
 
satishdave,
Initially I also had this understanding. I checked with lawyer and some sites. I am positive that one can go for 7th year extn only after LC is cleared and I-140 is pending.
spt
 
That's true

That's true, to qualify for the 7th year extension, LC has to be cleared and the application should be in I140 stage. It says that the application should be more than 1 year and I140 should be applied. So ur right in that sense.

Thanks
RKReddy

Originally posted by spt
satishdave,
Initially I also had this understanding. I checked with lawyer and some sites. I am positive that one can go for 7th year extn only after LC is cleared and I-140 is pending.
spt
Click to expand...
and
 
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