EB3 Retrogression and H1-B extension beyond 7th year

G

gc_void

Registered Users (C)
I have a I-485 EB3 application pending with CSC since Dec 2004 (PD: Dec 1999 based on a subst. LC) my I-140 has been already approved and have received EAD & AP.

I recently came across an article that said it is possible to have H1-B extensions beyond the 7th year in 3 year increments rather than 1-year due to EB3 retrogression. Is this true. I checked with my company's attorney but they say that this is not possible in my case since a I-485 has already been filed on my behalf and the 3 years extension is applicable only for people who have not been able file their I-485. Does the attorney has the correct understanding.

My employer is anyway filing a 1-year H1-B extension based my own LC, which is still pending.

Gurus please share your thoughts on this.

Thanks a lot.
 
Your attorney is wrong. He does not have the right facts.

The rule says if your 485 is pending and that your EB category is retrogressed (as your is since its EB3) for your priority date you can file for 7th year extension for 3 years provided your I-140 is also approved.
If the I-140 is not clear then its not possible.

Ask your attorney to check for the facts.

I asked the same question before and someone gave me this answer with the link.
 
Last edited by a moderator:
Thanks neocor & GPG.

neocor, what is the link that you were pointed to earlier regarding this issue. Could you please forward it to me.

Thanks again.
 
GPG said:
gc_void,
neocor is correct.
Click to expand...

I just spoke to my lawyer about this.

There is more to the 3 Year v/s 1 year Extension beyond the 6th year rule.
You got to be careful of what you choose. They are governed by two different rulings sections 104 and section 106.

The 1 year extension is based on the Labor filing (the 365 day rule that everybody knows). The 3 year extension on the other hand is based on the I-140.
Now the question is what difference does it make on what it is based on. The answer is that if your 485 petition is denied at a later point of time then the 3 year extention on H1 that was based on I-140 would immediately become invalid and you would become out of status right away.
However if you had got the I year extension based on the Labor then that H1 does not become invalid if your 485 is denied.

Hope this helps.

neocor
 
I defer !!

Even if the I140 is denied, the approved H1-b is still valid. Check previous posts by united nations !!
 
kirankumarj said:
Even if the I140 is denied, the approved H1-b is still valid. Check previous posts by united nations !!
Click to expand...

Which H1-B are you talking about? As I said the one based on the Labor will be in tact (1 Year Ext). But the one based on I-140 (3 Year Ext) will automatically become invalid.

My lawyer has quoted the details of the sections that govern both the rules.
Unless some other lawyer has some different interpretation i will listen to that. Otherwise this is a very much misunderstood rule.

neocor
 
You are right but both H1 are invalid, on what basis the one on LC will be valid

Since the LC cannot be used by the same employer, same emloyee again to file 140/485 then how would that be basis of extension. can you write down the detials of his explantion for LC..
neocor said:
Which H1-B are you talking about? As I said the one based on the Labor will be in tact (1 Year Ext). But the one based on I-140 (3 Year Ext) will automatically become invalid.

My lawyer has quoted the details of the sections that govern both the rules.
Unless some other lawyer has some different interpretation i will listen to that. Otherwise this is a very much misunderstood rule.

neocor
Click to expand...
 
Also you are allowed to switch back to H1-B if 140/485 is denied if you have another

LC for extensions or if you are less than 6 yrs on your H1-B. QUOTE=neocor]Which H1-B are you talking about? As I said the one based on the Labor will be in tact (1 Year Ext). But the one based on I-140 (3 Year Ext) will automatically become invalid.

My lawyer has quoted the details of the sections that govern both the rules.
Unless some other lawyer has some different interpretation i will listen to that. Otherwise this is a very much misunderstood rule.

neocor[/QUOTE]
 
USCIS may not care if I-140 is filed based on LC

nato said:
Since the LC cannot be used by the same employer, same emloyee again to file 140/485 then how would that be basis of extension. can you write down the detials of his explantion for LC..
Click to expand...

I guess its a loophole with the LC.
Are you sure you cannot file another I-140 based on the LC again even after the previous I-140 and 485 that were based on this LC was rejected?

I had posed the same question to my lawyer and according to them the 3 year Ext (H1-b) based on I-140 becomes invalid as the I-140 itself becomes void. Whereas the LC based H1-B ext still remains intact as the LC itself does not become void.

In theory as long as you have the LC filed for more than 365 days (LC being approved or not) you can keep extending the H1-B every year for 1 year duration. USCIS does not care if you have filed I-140 based on that or not. So I guess its a loophole or on second thought its just a plain rule. Cannot be classified as a loophole.

neocor
 
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