H1 extension approval delay beyond 240 days

imqwer

Registered Users (C)
#1
Here is my situation.

My H1B extension was filed in Oct 2005. We got receipt on Oct 15 2005. My H1 was expiring on Nov 15 2005. My case is still pending. My company enquired the status from USCIS. They say that the case is undergoing security check. I understand that I can remain in status till July 15, 2006. After that date, if my case still stays pending, I will have to leave the country because of the 240 days rule. My questions are:

1. It is not my fault that the case is still pending. So why should I have to leave? I filed in time. Is there any legal relief that I can seek or I have to leave no matter what is the status of my application. My understanding is that I will have to leave. Can anyone comment?

2. I asked my company to upgrade my application to premium processing. They replied that USCIS does not allow upgrading like that and they were refused the upgradation in a prior case similar to mine. Are they correct?

3. How much time Nebraska center is taking normally for H1b extensions ?

Any suggestions / advice from gurus is most welcomed.
 

Chicago Desi

Registered Users (C)
#2
imqwer said:
Here is my situation.

My H1B extension was filed in Oct 2005. We got receipt on Oct 15 2005. My H1 was expiring on Nov 15 2005. My case is still pending. My company enquired the status from USCIS. They say that the case is undergoing security check. I understand that I can remain in status till July 15, 2006. After that date, if my case still stays pending, I will have to leave the country because of the 240 days rule. My questions are:

1. It is not my fault that the case is still pending. So why should I have to leave? I filed in time. Is there any legal relief that I can seek or I have to leave no matter what is the status of my application. My understanding is that I will have to leave. Can anyone comment?

It's employee's responsibility to make sure that his/her status is legal. I am afraid you are correct that you may have to leave. Consult with a good lawyer (as if there is such a thing).

2. I asked my company to upgrade my application to premium processing. They replied that USCIS does not allow upgrading like that and they were refused the upgradation in a prior case similar to mine. Are they correct?

Security checks cannot be expedited, they take as much time as they like.

3. How much time Nebraska center is taking normally for H1b extensions ?

They have become very slow these days as regards to H1/H4 b/c they are focusing on i140/485. See this site for NSC https://egov.immigration.gov/cris/jsps/Processtimes.jsp?SeviceCenter=Nebraska

Any suggestions / advice from gurus is most welcomed.
 

jadoo85

Registered Users (C)
#3
My H1b Extension has been pending since May 2004. My Lawyer and USCIS has repeatedly said that as lond as ones application is pending for whatever reason you are _ in status_. So nothing to worry about.

Just my experience.

Jadoo85
 

imqwer

Registered Users (C)
#4
Please explain

jadoo85 said:
My H1b Extension has been pending since May 2004. My Lawyer and USCIS has repeatedly said that as lond as ones application is pending for whatever reason you are _ in status_. So nothing to worry about.

Just my experience.

Jadoo85
Jadoo,

I am quite relieved by reading your mail. I was really planning to pack my bags and go back.
Is it possible for you to explain a little bit more? If you are correct, then what is the 240 days rule? Each lawyers web site that I have checked, say that you can stay no more than 240 days after your status expires.
Did you get anything written from USCIS to this effect? I would truly appreciate your response.
It is a very serious matter for us. Just so you know, I do not have any EAD etc, just H1, that too expired in Nov 05.

However, what I found out is this:
http://www.uscis.gov/lpbin/lpext.dl...0/slb-28404?f=templates&fn=document-frame.htm
Sec. 274a.12 says:
(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to Secs. 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision. (Revised 1/1/94; 58 FR 69217)

Free to interpret ?
 
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GotPR?

Registered Users (C)
#5
You are right.
Employment under pending extension can not exceed 240 days after expiration of status.
(b)(9) highlighted in red is H visa category.
I belive you can stay even after 240 days as you are under authorized stay, but can not work(please confirm with lawyer in this regard).

8CFR 274A (b) (20).

(b) Aliens authorized for employment with a specific employer incident to status. The following classes of nonimmigrant aliens are authorized to be employed in the United States by the specific employer and subject to the restrictions described in the section(s) of this chapter indicated as a condition of their admission in, or subsequent change to, such classification. An alien in one of these classes is not issued an employment authorization document by the Service:

(20) A nonimmigrant alien within the class of aliens described in paragraphs (b)(2), (b)(5), (b)(8), (b)(9), (b)(10), (b)(11), (b)(12), (b)(13), (b)(14), (b)(16), and (b)(19) of this section whose status has expired but who has filed a timely application for an extension of such stay pursuant to Secs. 214.2 or 214.6 of this chapter. These aliens are authorized to continue employment with the same employer for a period not to exceed 240 days beginning on the date of the expiration of the authorized period of stay. Such authorization shall be subject to any conditions and limitations noted on the initial authorization. However, if the district director or service center director adjudicates the application prior to the expiration of this 240 day period and denies the application for extension of stay, the employment authorization under this paragraph shall automatically terminate upon notification of the denial decision. (Revised 1/1/94; 58 FR 69217)
 
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imqwer

Registered Users (C)
#6
Another dimension - I-140 approved

There is another dimension to my case too which I should have mentioned in my earlier postings.

My EB3 I-140 was approved in 2004. I took CP instead of AOS. The case is still pending due to security clearance. If I want to change from CP, I cannot file I-485 because of retrogression. My company has filed for 3 year extension becuase of my I-140 approval.

Does this I-140 approval gives me any legal justification to stay beyond 240 days ?

I will appreciate response from this portal 's gurus.
 

aries-man

Registered Users (C)
#7
Guys,
My H1 has been pending since Feb 2005, My lawyer has said that i have no problems staying since my application is pending.
But the issue is how long can we stay without visiting family in India.
Its already a year and half and still counting

Has anyone's security check during H1 gotten cleared as of now

Is there anything we can do to have the process expedited?
I mean is any department looking into actually processing the security checks.
I mean i dont even have a traffic violation , have been in the US since 9 years and have to put up with this long delay.
Does contacting the state department or FBI or having a query sent by the locak senator help in this case.

Thanks
aries-man
 

imqwer

Registered Users (C)
#8
then what is the 240 days limit ?

aries-man said:
Guys,
My H1 has been pending since Feb 2005, My lawyer has said that i have no problems staying since my application is pending.
That 's precisely what I am asking.

Under which law can the lawyer say that? What is the basis for this assumption?
I guess they say for only one resaon. Whenever the petition gets approved, it comes with a valid I-94. So, you become ok as far as status is concerned. The time spent after 240 days becomes kind of legal, but that too if no one checks. Otherwise, the law looks clear as mentioned above. One has to go out. My knowledge in this matter is very limited. So, I would invite some guru to comment on this.
 

aries-man

Registered Users (C)
#9
Actually when i applied in feb 2005, i was in my fifth year, so i applied for sixth year H1 ( may 2005 to may 2006 )

We already sent another application for the seventh year ( may 2006 to may 2007 ) since my I-140 is not complete.

Both these applications are pending with CIS

I guess we have to file timely extension applications with them to stay in status.
I guess we can look at it the way that at least we are here when stuck
rather than going for a H1 stamping outside the country and getting surprised about the security check then
 

gcwait11

Registered Users (C)
#10
i think you can work upto 240 days once your visa expired after that you can not work but you can stay
i am not able to get any information which are saying that you can continue to work after 240 days
 

imqwer

Registered Users (C)
#12
What to do ?

So if at the end of my 240 days period, I stay in the US, I am out of status. But what if I leave before that time? What will happen to my H1 extension application? I understand that going out of US means that I am abandoning the extension application. That application is actually the application to extend my stay o H1 while in the US. If I go out , it is done.

I am so confused.
 

nup

Registered Users (C)
#13
Why don't you do your extensions in premeium . My husband got his 9th year extension approval in 30 days through premeium processing. I think that is the best way.
 

imqwer

Registered Users (C)
#14
This does not seem to be an option

nup said:
Why don't you do your extensions in premeium . My husband got his 9th year extension approval in 30 days through premeium processing. I think that is the best way.
Right. But if the case is being delayed due to security checks, the premium processing case will also have to go to these checks. So, I guess that USCIS will not accept it.
My company says that they have been denied upgrading to premium processing in a similar case.
 

GotPR?

Registered Users (C)
#15
You may not be able to get clear answer for this case here. My understanding is 240 days is for max employment period under pending extension after status expiration, however, you can stay beyond 240 days as long as petition is pending.
I have never heard that the period of authorized stay under pending extension or COS is limited, but I might miss something in the law.

I'd recommend to talk to lawyer.

Regarding leaving the US, it is OK to leave, but in case you get H1 approval with I94 during you are out of the US, validity of I94 is questionable. it may be safer to follow the validity of I94 you will get at POE instead of the one attached to H1 approval.
 
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tpal

Registered Users (C)
#16
Do H1B Extension after 6 Yrs always comes with I-94 ???

Hi,
I came here on L1b visa then changes to H1b visa (with H1b visa never stamped on passport as I never go outside USA).
My H1b 6yrs limit is about to expire soon.I want to apply for extension
My Question is----
(1) Do H1b extension always comes with I-94 OR some times H1b extension does not comes with valid I-94 and one has to go outside USA for stamping in that case??
(2) In what cases H1b extension comes with valid I-94??
(3) In what cases H1b extension comes without I-94??

In my case I always been in status in USA and applying for H1b extension before 6 years expiration.

Appreciate your reply!!
Many Thanks
 

GotPR?

Registered Users (C)
#17
tpal said:
(1) Do H1b extension always comes with I-94 OR some times H1b extension does not comes with valid I-94 and one has to go outside USA for stamping in that case??
(2) In what cases H1b extension comes with valid I-94??
(3) In what cases H1b extension comes without I-94??
1) It depends.
2) If USCIS considered you were maintaining status when you filed extension.
3) If USCIS considered you were not maintaining status when you filed extension.
 

tpal

Registered Users (C)
#18
When to File for 7th Year H1b Extention??

Thanks for your reply GotPR!!

Kindly let me know when to file My 7th year H1b extension??
Filed labor on march 17 2006 and H1b Expiry is June 29 2007
1).At the time of filing extension it should be 365 days complete for the time one has filed for Labor(i.e. I should file for extension only after march 17 2007)
OR
2) H1b Expiry should be 365 days after labor is filed(i.e. in my case it is more than 365 days)
3)How soon an extension for 7th year can be filed??
4)Can we expedite 7th year extension if so what are the fees and what is new fees??
Appreciate your response!
Many Thanks
 

GotPR?

Registered Users (C)
#19
H1 extension can be accepted 6 months before expiration(strictly, 6 months prior to new start date of H1 employment).

YOu can file extension as mentioned above, even though LC did not reach 365 days yet.
If it is obvious that LC will be 365 days old on new H1 start date in petition, CIS will approve extension.
 

balurams

Registered Users (C)
#20
H1B 8th year with recently Approved labor

Hi,

I got my labor approved 3 weeks before. My lawyer is preparing the paperworks for my I-140/I-485 filing. My H1B is about to expire in August.

Can I apply for my H1B extension with just my approved labor? Do I need I140/I-485 reciept for applying the H1B extension? I have seen in some forums that I can apply H1B extensions beyond 6 years only if my I-140 or labor is pending for more than a year. What is my situation here?

Can anyone give me some information on this?

Thanks,
balurams
 
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