H1 Extension based on approved labor

S

Some_GreenCard

Registered Users (C)
:confused:
Gurus,

Pl. reply. Due to EB3 priority dates retrogression, iam confused how my h1 extension will work. My h1 is expiring April 2005 and labor is pending more than 365 days @ Atlanta DOL. My question is , if my labor is approved sometime this month or next month , can i file H1 extension based on approved labor.

Since i wont be able to file 485 due to priority dates gone back, i wont be able to file h1 extension based on my pending 485.

Any help appreciated.

Thanks
 
Some_GreenCard said:
:confused:
Gurus,

Pl. reply. Due to EB3 priority dates retrogression, iam confused how my h1 extension will work. My h1 is expiring April 2005 and labor is pending more than 365 days @ Atlanta DOL. My question is , if my labor is approved sometime this month or next month , can i file H1 extension based on approved labor.

Since i wont be able to file 485 due to priority dates gone back, i wont be able to file h1 extension based on my pending 485.

Any help appreciated.

Thanks
Click to expand...

You can file H1 extension right now ( as you can file extension before 6 months of expiry date) on base of pending labor.

Also you can file extension on base of pending I-140
 
Thnxs GP111 for your prompt reply. Can you post link to confirm that i can file extension based on pending I-140, because i remember it was pending 485.

I wish i can file my h extension now but company HR is talking about companies policy of filing before 3 months of expiriy of H1...HR guys rule us(H1)...Dam....it.

gp111 said:
You can file H1 extension right now ( as you can file extension before 6 months of expiry date) on base of pending labor.

Also you can file extension on base of pending I-140
Click to expand...
 
as I understand

You can file for extension no matter in which phase of gc processing you are at. The only exception is that the gc process should have been started 1 yr ago, in other words your state should have been filed 1 yr ago.

I think you should be fine even with you company rules.

Some_GreenCard said:
Thnxs GP111 for your prompt reply. Can you post link to confirm that i can file extension based on pending I-140, because i remember it was pending 485.

I wish i can file my h extension now but company HR is talking about companies policy of filing before 3 months of expiriy of H1...HR guys rule us(H1)...Dam....it.
Click to expand...
 
rest_2004_free said:
You can file for extension no matter in which phase of gc processing you are at. The only exception is that the gc process should have been started 1 yr ago, in other words your state should have been filed 1 yr ago.

I think you should be fine even with you company rules.
Click to expand...


You can file extension only if Labor or I-140 is pending for 365 days or more.. If you believe that your LC will be cleared in Jan-03 (3 months before expiry), you will not get extension based on pending LC (its no longer pending & I-140 is just filed / to be filed).. You must file for Extension before your LC gets certified other wise there will be complications of proving your non eligibility of file I-485 with I-140 (due to PD retrogression) & try to get extension on that basis.

thanks to murthy.com

7-Year (and Beyond) Extensions - Correction ©MurthyDotCom
The USCIS has issued a correction regarding the timing of filing for extension of an H1B beyond the six-year limitation. The correct rule is that a "seventh-year" extension cannot be filed until the labor certification / green card filing upon which it is based has been pending for at least 365 days. This was announced in a USCIS Memo dated April 24, 2003 and explained in our May 9, 2003 MurthyBulletin article, H1B Extensions under the 21st Century DOJ Appropriations Act, available on MurthyDotCom. The USCIS reasoning is that an individual must be eligible for a benefit sought at the time the case is filed. It would not be possible, therefore, to request an extension prior to the 365th day of the green card case. This requirement holds even when one wants to file the H1B in advance, but requests a later start-date that falls after the 365-day requirement has been met. Although it may make sense, an early filing like this is not permitted in "7th-year" extension situations.The USCIS had announced a contrary rule in a Service Center Operations Teleconference on July 27, 2004. This information was included in a MurthyBulletin article dated August 6, 2004. However, the USCIS once again has confirmed its earlier position so that the old rule still applies. In light of this, we reiterate our general advice to those who are approaching the five-year point in the H1B. It is necessary to begin a green card case before that five-year mark in an H1B in order to be eligible to file for a seventh-year extension. However, we do not recommend waiting until too near the H1B five-year point or the window for filing the 7th-year extension will be very narrow. It is better to file no later than six months before the 5-year point, so that there is flexibility as to when the annual extensions may be filed.

http://www.murthy.com/news/n_7thyr.html
http://www.murthy.com/news/UDh121st.html
 
USNYCUS, Let me know your thoughts on this... I also called my HR told them to start my h1 extension and ignore their policy of 3 months before...told them my relative is close to death bed...i may need to travel anytime..

This Quote is from my PM.

usnycus
Moderator Join Date: Sep 2002
Posts: 1,852

Re: H1 extension based on approved labor

--------------------------------------------------------------------------------

You should be fine regarding 7th year extension. If you have letter from SESA/DOL regarding initial acceptance of your LC application, send that along with H1 extension.

Quote:
Originally Posted by Some_GreenCard
Pl. reply. Due to EB3 priority dates retrogression, iam confused how my h1 extension will work. My h1 is expiring April 2005 and labor is pending more than 365 days @ Atlanta DOL. My question is , if my labor is approved sometime this month or next month , can i file H1 extension based on approved labor.

Since i wont be able to file 485 due to priority dates gone back, i wont be able to file h1 extension based on my pending 485.

Any help appreciated.
 
I dont get this even before retrogression dates announced for EB3...

If you labor is approved and after that you get eligble to apply 7th year extesnion...still you wont be able to apply 7th year extension because your I140/485 (concurrent) is not past 365 days...but if you get EAD you move to EAD status (still not good idea what happens if I140 denial..)

:confused:
 
Yeah gurus like Usyncus are right!!... I got curious after reading this thread and found the following info from murthy's website ...

"
Substitution Beneficiary Enjoys H1B Extension Benefit!

In a particularly liberal construction of the law, Mr. Yates indicates that, if a labor certification, previously approved for another "green card" candidate but unused for that candidate, is now being used to support an I-140 petition for an H1B status holder, the date of filing of the original labor certification may be used for that H1B nonimmigrant to file for one-year incremental H1B extensions, as long as additional proof is submitted that the person has a pending or approved I-140 based on that labor certification. Under this interpretation, therefore, a person who is using a substituted labor certification that was filed more than 365 days prior, but whose employer filed the I-140 petition for the H1B employee only two months before the six-year H1B window expired, is now eligible for the one-year incremental extensions.
"

Even though they do talk about substitution but I think if the person(who filed original LC) is carrying on to file I-140, he is eligible for the H1b extension
even though 365 days have yet not passed filing I-140

What a relief
 
Last edited by a moderator:
So let us get this straight....

As per their rules....

Pending labor for more than a year -- H1 extension allowed.
Approved labor and pending 140 -- H1 extension allowed.
Approved labor and approved 140 waiting for retrogression date -- H1 extension allowed (I hope this is what we have concluded/guessed)Of course if you file AOS then you can extend H1 or get EAD.




nk01 said:
Yeah gurus like Usyncus are right!!... I got curious after reading this thread and found the following info from murthy's website ...

"
Substitution Beneficiary Enjoys H1B Extension Benefit!

In a particularly liberal construction of the law, Mr. Yates indicates that, if a labor certification, previously approved for another "green card" candidate but unused for that candidate, is now being used to support an I-140 petition for an H1B status holder, the date of filing of the original labor certification may be used for that H1B nonimmigrant to file for one-year incremental H1B extensions, as long as additional proof is submitted that the person has a pending or approved I-140 based on that labor certification. Under this interpretation, therefore, a person who is using a substituted labor certification that was filed more than 365 days prior, but whose employer filed the I-140 petition for the H1B employee only two months before the six-year H1B window expired, is now eligible for the one-year incremental extensions.
"

Even though they do talk about substitution but I think if the person(who filed original LC) is carrying on to file I-140, he is eligible for the H1b extension
even though 365 days have yet not passed filing I-140

What a relief
Click to expand...
 
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