H1-B extn beyond 6 yrs also invalid... if 140/ 485 denied read this link

we all tend to believe what is good for us, read this again, even has been granted...

Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay? Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:
A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;

Deny the EB immigrant petition, or C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status
tammy2 said:
If H1 is already approved for the seventh year it not will not become invalid. But next time when you file for extension after denial your H1 (May 8th or subsequent year) will be denied unless you have any other valid supporting reasons.
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Ummmm...

Tammy2 got me thinking. Read the lines "USCIS is required to grant the extension untill such time.... deny...". It doesn't say USCIS is required to cancel the H1B at the time of denial. It appears that the USCIS is binding itself into granting the H1B extension (and not withdrawing/cancelling the extension) until it denies the I140/ I-485. The best thing will be to get the passport stamped and get a new I-94 with the H1 extension approval.
 
none comes and cancel or verify your status, tons of illegal people work in US

even for your EAD, you can continue using it even after 485 is denied. similarly cis often is approving h1-b beyond 6 yrs by mistake. however the responsibility is ours even murthy says that.

same way once you get the extension none will come and cancel it, it is for oneself that if one wants to take chance. with illegal stay. the H1-B stay on an extesnion would be considered illegal if the underlying basis on which it is taken is denied.

read the note it says also one can apply for h1-b if 485 is denied. obviously that is possible only if done right away or you get NOID, then if you have time left in H1-B it can be used... :) .

it is just like having a stamp in passport but one is laid off. none came and deported me as my stamp was valid for 2 more years after the layoff but I still had to travel back to get another h1-b as I was out of status.

check with the lawyer he will tell the same thing or carefully read each word in that memo.




pras01 said:
Tammy2 got me thinking. Read the lines "USCIS is required to grant the extension untill such time.... deny...". It doesn't say USCIS is required to cancel the H1B at the time of denial. It appears that the USCIS is binding itself into granting the H1B extension (and not withdrawing/cancelling the extension) until it denies the I140/ I-485. The best thing will be to get the passport stamped and get a new I-94 with the H1 extension approval.
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having a backup H1 if it is less than 6yrs makes perfect sense...

nato said:
even for your EAD, you can continue using it even after 485 is denied. similarly cis often is approving h1-b beyond 6 yrs by mistake. however the responsibility is ours even murthy says that.

same way once you get the extension none will come and cancel it, it is for oneself that if one wants to take chance. with illegal stay. the H1-B stay on an extesnion would be considered illegal if the underlying basis on which it is taken is denied.

read the note it says also one can apply for h1-b if 485 is denied. obviously that is possible only if done right away or you get NOID, then if you have time left in H1-B it can be used... :) .

it is just like having a stamp in passport but one is laid off. none came and deported me as my stamp was valid for 2 more years after the layoff but I still had to travel back to get another h1-b as I was out of status.

check with the lawyer he will tell the same thing or carefully read each word in that memo.
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agree that it is not worded and explicit but it is implicit

and surely that H1 invalidation is not retro just like the EAD,485 and offers the same benefit for reapplying and appeals. ..again if the extn is based on a pending LC, which is denied that H1-B extension is a false sense of additional security.

if one has only little time left in 6 yrs H1-B it is better to preserve that to apply for that remaing period of 6yrs if 485 is denied, rather than consume it now...

if appeal is denied then one is in illegal stay from the day it is denied and the H1-B extn on basis of these 485/lc etc will not support the legal stay anymore either....

this is a new scenario not yet common, but say if it were to go back to yates for carification sooner or later, what would be the response a or b??....
a)the H1-B remains valid and person can continue...
b) since the underlying pettion basis is gone...so it is invalidated too


unitednations said:
I think you are taking this out of context and the memo isn't clearly worded.

The context is that you are in your six years. The extension gets approved but the 7th year hasn't kicked in yet and a final decision is made. Since the final decision has been made then you are not eligible for the 7th year extension even though it is approved but it hasn't come into affect yet.

The context of that memo is everything is happening before the 7th year kicks in.

The likelihood of getting a final decision on an I-140 before the 7th year kicks in is so remote. Let's say you apply for 7th year extension six months before expiry of h-1b. Within the next six months your 140 would have to get denied, you would file a motion to reopen, it gets denied, you file a motion to reopen/appeal, it gets denied and then you file another motion to reopen the appeal and it gets denied and then you go to court and it gets denied.

With regards to your analogy of EAD and 485 denial. Every 485 denial notice states that any work authorization granted with the 485 is also denied (the INA section it references is one for EAD card).

Look at it another way; if you are in your 7th or 8th year due to an appeal and there is a final decision then you are saying it is retroactive to the sixth year and you have been illegal for two years. Immigration law generally doesn't give retroactive affect as long as it is not a "frivolous" application. If it did, then anyone who has ever had an application denied would never be able t o get a greencard approved.
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yes one is illegal from initial denial date if appeal is denied and subject to 10ybar

unitednations said:
I think you are taking this out of context and the memo isn't clearly worded.


Look at it another way; if you are in your 7th or 8th year due to an appeal and there is a final decision then you are saying it is retroactive to the sixth year and you have been illegal for two years.

correct this is true that if yor appeal is denied you are considered illegal from the date of denial which is 2 yrs in above example...(recheck this)
Immigration law generally doesn't give retroactive affect as long as it is not a "frivolous" application. If it did, then anyone who has ever had an application denied would never be able t o get a greencard approved.
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