Does CP candidates qualify for 3yr Ext. (as per new Yates Memo)

D

DalRanger

Registered Users (C)
Hello All,

Here' my situation:
Category: EB3
Labor PD:12/04/03
Labor approved: 06/20/04
I-140 Approved: 08/28/04
Applied for Consular Processing, currently papers are in Chennai consulate.

I have applied for 3yrs extension (as my current H1 is expiring in Sep 05) as per new Yates Memo. But I have received a query from USCIS. They are asking me to submit further evidence supporting my I485 application. But I have opted for Consular processing, does it mean that CP candidates do not qualify for 3yr extensions?

My understanding was that anyone who got their Labor cleared more than 365 days prior and also got the I-140 approved are eligible for automatic 3yr extensions.

Please clarify if this is not true and also how should I respond to the query.

Thanks,
-DR
 
Thanks for the info rrajendr. Can you please provide me any supporting documentation or links to the info that I can use to respond to the query.

Also what if for some reason my petition is denied, how can I appeal for a correction. What all documents/information I would need to appeal.

Thank you,
Regards,
-DR.
 
Oh Heavens!

I am in the same boat! This is what I found in AC21.

(c) One-Time Protection Under Per Country Ceiling: Notwithstanding section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)), any alien who--

(1) is the beneficiary of a petition filed under section 204(a) of that Act for a preference status under paragraph (1), (2), or (3) of section 203(b) of that Act; and

(2) is eligible to be granted that status but for application of the per country limitations applicable to immigrants under those paragraphs,
may apply for, and the Attorney General may grant, an extension of such nonimmigrant status until the alien's application for adjustment of status has been processed and a decision made thereon.



A strict reading makes it look like this is available to someone who has applied for AOS (485) and not for CP and also not for those who cannot apply for AOS as visas are unavalable/have priority date issues!

My take on this is -

1. you have notified the US Embassy that you are ready to get the immigrant visa (if they give you one) and you have the necessary documentation and have paid the fee. They are unable to process due to .....
So, your application for changing to immigrant status was pending for the reason that the per country limit kicked in or no more visas are available. But you are in US as a legal non-immigrant and are waiting to adjust your status to an immigrant as soon as they would give you one.

2. Consider a case where there is a non-concurrent EB3 petition. Right now, if the I-140 is approved and the applicant had indicated that he would file for AOS (485) but cannot apply now because of the visa unavailability, it means he is not in aos, so cannot be given 3 year extension !! That is ludicrous.

You may want to consult with the member on this forum who wrote a letter to Yates and resulted in the May 12 memo (with the current liberal interpretation with regard to portability issues). And follow the same course of action. Also could you please post the wording in the RFE so we can get a better idea of what USCIS is looking for.

If I find something else I will let you know. But do keep this forum posted.

PLEASE HAVE COURAGE, ABOVE ALL. MY H1B 7th year extension was RFEd as I had applied before a year of Labor. But I was seeking extension after a year of labor date. My employer said he wrote a profusely apolegitic letter at this early application and requested approval. They approved, issued a clarification and retracted 2 weeks later and much later in May 2005 the Yates memo came out essentially re-instating the position USCIS took in my case.

I HOPE & PRAY SIMILAR GOOD SENSE PREVAILS NOW.

I sincerely wish you the best.

Hanuman
 
Last edited by a moderator:
Hanuman55 Thanks for the detailed note.

I still see some hope around this. Can you please provide me with the name of the member on this Forum who wrote a letter to Yates.

Also this is what is listed in the RFE (for every one's benefit):
--------------------------------------------------------------------------
The eligibility criteria under the AC21 section 104 (c) are:
1) The beneficiary must be maintaining H1B status at the time of filing the I-129
2) The beneficiary must have an approved I-140 and pending I-485; and
3) This beneficiary must be able to adjust status to permanent resident status but for the per-country ceiling on immigrant visas.

Evidence of the beneficiary pending I-485 has not found in the record of this proceeding or the Service's records. Please provide a copy of the Service's notice of receipt for the beneficiary's pending I-485.
--------------------------------------------------------------------------

But as per the attached link to the ac21guide.pdf
(http://uscis.gov/graphics/lawsregs/handbook/ac21guide.pdf)
section II.C. AC21 104 (c) - "One - Time Protection" Benefits Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitation; The statute states that the beneficiary must:
(a) have a petition filed on his or her behalf for a preference status under INA 203(b)(1),(2), or (3) (an employment based ("EB") petition); and
(b) be eligible to be granted that status except for the per-country limitations.

According to the above, and if you go through the memo it never clearly mentions about Pending I-485, so my understanding is that it could be either pending I-485 or Document supporting CP case.

Can anyone shed some light into this and let me know if anyone had got an approval for 3yrs extn through this ammendment being a CP candidate.

Thanks,
Regards,
-DR.
 
Same boat soon

i will be in the same boat soon
as per the RFE, what i will suggest to do is
1.Write an explanation letter that you had opted to go CP and not AOS
2. Attach the letter that NVC sends you/ your lawyer that the case has been completed processing and it has been sent to Consulate and the interview will be scheduled when PD is current

this letter is almost a sort of a receipt notice that your CP application has been received processed and sent to consulate.
I would with the help of the lawyer use that as the evidence.
for my application i have already submitted that letter along with the h1 extension application
/S
 
DalRanger said:
Hanuman55 Thanks for the detailed note.

I still see some hope around this. Can you please provide me with the name of the member on this Forum who wrote a letter to Yates.

Also this is what is listed in the RFE (for every one's benefit):
--------------------------------------------------------------------------
The eligibility criteria under the AC21 section 104 (c) are:
1) The beneficiary must be maintaining H1B status at the time of filing the I-129
2) The beneficiary must have an approved I-140 and pending I-485; and
3) This beneficiary must be able to adjust status to permanent resident status but for the per-country ceiling on immigrant visas.

Evidence of the beneficiary pending I-485 has not found in the record of this proceeding or the Service's records. Please provide a copy of the Service's notice of receipt for the beneficiary's pending I-485.
--------------------------------------------------------------------------

But as per the attached link to the ac21guide.pdf
(http://uscis.gov/graphics/lawsregs/handbook/ac21guide.pdf)
section II.C. AC21 104 (c) - "One - Time Protection" Benefits Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitation; The statute states that the beneficiary must:
(a) have a petition filed on his or her behalf for a preference status under INA 203(b)(1),(2), or (3) (an employment based ("EB") petition); and
(b) be eligible to be granted that status except for the per-country limitations.

According to the above, and if you go through the memo it never clearly mentions about Pending I-485, so my understanding is that it could be either pending I-485 or Document supporting CP case.

Can anyone shed some light into this and let me know if anyone had got an approval for 3yrs extn through this ammendment being a CP candidate.

Thanks,
Regards,
-DR.
Click to expand...

You will certainly qualify if either your I-140 or I-485 or Both are pending. Since there is no pending application they may not give three year extension.

Try by sending NVC fee bill that shows your interview is pending.
 
Please refer to the Question 8 on page 10 of newsly released AC21 guidelines. And, it says that CP option is also eligible for 1 year extensions. The three year part is still elusive for CP option, I think.

I, myself, am on 9th year extension now. I got the 3 rd extension last month. And, there were no issues. What we presented is a letter from the Attorneys stating that my case is going thru CP and with NVC. And, I don't know what other documents were given to support Attorney's letter.

Hope it helps!!
 
rkrishna22,
if you happen to have the letter with you can you please share it with me. That would really help me a lot in drafting a letter.

Thank you,
Regards,
-DR.
 
Just saw that my I129 and family's extension of stay I529 have been approved. Yet to see the paper approval. I had applied for 3 yr H1/extension. I have opted for CP and my papers are in Madras for last 7 months! I am already in the 7th year of H1. I was thinking of asking my employer to write to USCIS to approve the H1 for 1 year if 3 years are not permissible!

Hope you have also got approval by now. Pl do post the outcome of your reply to RFE.

Hanuman

DalRanger said:
Hello All,

Here' my situation:
Category: EB3
Labor PD:12/04/03
Labor approved: 06/20/04
I-140 Approved: 08/28/04
Applied for Consular Processing, currently papers are in Chennai consulate.

I have applied for 3yrs extension (as my current H1 is expiring in Sep 05) as per new Yates Memo. But I have received a query from USCIS. They are asking me to submit further evidence supporting my I485 application. But I have opted for Consular processing, does it mean that CP candidates do not qualify for 3yr extensions?

My understanding was that anyone who got their Labor cleared more than 365 days prior and also got the I-140 approved are eligible for automatic 3yr extensions.

Please clarify if this is not true and also how should I respond to the query.

Thanks,
-DR
Click to expand...
 
Provide details

Hanuman
can you provide me details about your case,Wehn you applied for your 7th year extension did you provide any documentation along with it to support your 3 year extension based on your case in chennai for 7 months
Im in a similar boat just filed my application in VSC last week with a copy of the document that we received from NVC saying that your case has been transferrred to chennai consulate and interview will be scheduled when PD is current. ( along with all the 140 approval copies etc)
Would that suffice or should we have to send any more documents ?
please let us know
/S
 
Congrats Hanuman55,
I haven't received the approval yet. I have replied to RFE and USCIS had received the response this monday, so hoping to hear something by tomorrow as they said they would.

Here's what I had sent to USCIS in response.

Actual RFE:
The eligibility criteria under the AC21 section 104 (c) are:
1) The beneficiary must be maintaining H1B status at the time of filing fo the I-129
2) The beneficiary must have an approved I-140 and pending I-485; and
3) This beneficiary must be able to adjust status to permanent resident status but for the per-country ceiling on immigrant visas.

Evidence of the beneficiary pending I-485 has not found in the record of this proceeding or the Service's records. Please provide a copy of the Service's notice of receipt for the beneficiary's pending I-485.


My Response to my attorney, who formed a case based on this and submitted:

as per the attached link to the ac21guide.pdf
(http://uscis.gov/graphics/lawsregs/handbook/ac21guide.pdf)
section II.C. AC21 104 (c) - "One - Time Protection" Benefits Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitation; The statute states that the beneficiary must:
(a) have a petition filed on his or her behalf for a preference status under INA 203(b)(1),(2), or (3) (an employment based ("EB") petition); and
(b) be eligible to be granted that status except for the per-country limitations.

According to the above, and if you go through the memo it never clearly mentions about Pending I-485, so my understanding is that it could be either pending I-485 or Document supporting CP case. So I guess if we submit the letter that we received from NVC stating that the case is currently in Chennai Consulate and has been pending because of unavailability of visa numbers, that should be sufficient enough for us to get the 3yr extension.

Also as per the recently issued interim guide AC21intrm051205.pdf
(http://uscis.gov/graphics/lawsregs/handbook/AC21intrm051205.pdf)
section II Question 8.
Should service center or district offices deny a request for an H-1B extension beyond the 6-yr limit where the labor certification or the immigrant petition was filed over 365 days agi, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: NO.

Though the question was specifically deemed for Section 106 1yr extensions, my take on this is that it should also be applied for the 104 (c).

Based on this finding my Attorney had responded, I am yet to receive the approval.

Can you share with us how you have approached for 3yr extn (supporting documents, letter etc..,)

Thank you,
Regards,
-DR.
 
Hi Sada/Dal,

I really did not do any special effort. I completed extension application (I-539) for my family and sent that with the Yates Memo, highlighting the clarification on one-time protection extension portion and asked my employer to send these with the H1B and LCA and the I-140 approval (which I am yet to see!).

Also I sought that the H1B1 approval be sent to Chennai as I am planning to visit India and get that stamped. So, nothing really special at all. No letter indicating that we have paid the fee or the papers are in Chennai etc. In fact I was planning to request my employer to write to USCIS to approve the extension for 1 year if 3 years is not permissible!!

Now I have another thing to worry! Would me & family be in status if i delay getting the visa stamped at Chennai! I am eagerly waiting to see the actual approval to decide the course of action, given the fact that it takes nearly 5 months to get an appointment at Chennai! I appreciate any of yor inputs on this!

Best of luck folks!

Hanuman
 
Can you not choose Canada

Hanuman
can you not choose canada to do your visa stamping
considering you have 3 year extension, if you do it in canada adn come back
it will cost and take some time
but you will have a very peaceful india trip without having to deal with chennai
which service center was your application for h1b extension filed at ?

/S
 
Oh folks!!!!!!!!!!!!!!

The approvals of I-539 have come from Vermont and they indicate only 1 year extension eventhough we had applied for 3 years! I had requested my employer to apply for 3 years for me. I am not sure whether it was done or just applied for 1 year or the USCIS unilaterally decided to renew 1 year without an RFE! I suspect that either the I-129 or the LCA attached did not indicate 3 years, I dont know what! I am yet to get my own approval from my employer!

There is also another error in the approval, I think. One of the H4 beneficiary turns 21 and the extesion approval goes beyond that date! I dont know whether this law had an amendment!

As regards going to Canada for visa stamping, is there anything that I can do now? How can I get the US Embassy in Canada to stamp this approval. Can I do this even if the approval has gone to Madras? Also the visa on the passport has expired sometime back. Would this be an issue?

Thanks for your inputs.

Hanuman
 
I also have similar quetion. My H1 and my dependants' H4 s have expiry date of 06th Sept, 2005 and I have my 9th year extensions approved but NOT stamped on our passports. I am expecting consular interview either in Sept or Oct of 2005. So, by the time I go to the consulate for interview, I would not have a valid stamping on our passports. Would that be an issue? Please clarify!!
 
Hanuman55, r_sada, rkrishna22,
My case is approved. Yet to receive the papers. Hopefully I think it is a 3yr extn. If not also its ok as I can survive for another yr and hopefully by end of this extn I'll get my CP Interview done.

THX. I'll update you guys as soon as I receive the papers.

Thanks once again,
Regards,
-DR.
 
rkrishna22 said:
I also have similar quetion. My H1 and my dependants' H4 s have expiry date of 06th Sept, 2005 and I have my 9th year extensions approved but NOT stamped on our passports. I am expecting consular interview either in Sept or Oct of 2005. So, by the time I go to the consulate for interview, I would not have a valid stamping on our passports. Would that be an issue? Please clarify!!
Click to expand...

It could be an issue if your interview is NOT successful (Godforbid). Because at that time you will not have a valid visa to enter US. But if it is cleared then there are no issues at all as they would cancel all prior visas by stamping "Without Prejudice". Since you don't have one, it will not be a problem.

Regards.
-DR.
 
DalRanger said:
Hanuman55, r_sada, rkrishna22,
My case is approved. Yet to receive the papers. Hopefully I think it is a 3yr extn. If not also its ok as I can survive for another yr and hopefully by end of this extn I'll get my CP Interview done.

THX. I'll update you guys as soon as I receive the papers.

Thanks once again,
Regards,
-DR.
Click to expand...

What exactly did you respond to your RFE can you fwd that to us
please
so that we can be prepraed
and which service center did you file the case.
/S
 
Here's what I had sent to USCIS in response.

Actual RFE:
The eligibility criteria under the AC21 section 104 (c) are:
1) The beneficiary must be maintaining H1B status at the time of filing fo the I-129
2) The beneficiary must have an approved I-140 and pending I-485; and
3) This beneficiary must be able to adjust status to permanent resident status but for the per-country ceiling on immigrant visas.

Evidence of the beneficiary pending I-485 has not found in the record of this proceeding or the Service's records. Please provide a copy of the Service's notice of receipt for the beneficiary's pending I-485.


My Response to my attorney, who formed a case based on this and submitted:

as per the attached link to the ac21guide.pdf
(http://uscis.gov/graphics/lawsregs/...k/ac21guide.pdf)
section II.C. AC21 104 (c) - "One - Time Protection" Benefits Extension of H-1B Status Permitted where Adjustment Pending under Per Country Limitation; The statute states that the beneficiary must:
(a) have a petition filed on his or her behalf for a preference status under INA 203(b)(1),(2), or (3) (an employment based ("EB") petition); and
(b) be eligible to be granted that status except for the per-country limitations.

According to the above, and if you go through the memo it never clearly mentions about Pending I-485, so my understanding is that it could be either pending I-485 or Document supporting CP case. So I guess if we submit the letter that we received from NVC stating that the case is currently in Chennai Consulate and has been pending because of unavailability of visa numbers, that should be sufficient enough for us to get the 3yr extension.

Also as per the recently issued interim guide AC21intrm051205.pdf
(http://uscis.gov/graphics/lawsregs/...intrm051205.pdf)
section II Question 8.
Should service center or district offices deny a request for an H-1B extension beyond the 6-yr limit where the labor certification or the immigrant petition was filed over 365 days agi, but the H-1B nonimmigrant intends to consular process rather than adjust status?
Answer: NO.

Though the question was specifically deemed for Section 106 1yr extensions, my take on this is that it should also be applied for the 104 (c).

For the exact links check the Post# 12 of this thread.

Thanks,
-DR
 
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