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H1 Extension based on Pre-Approved Labor
- Thread starter ramanik
- Start date
ramanik said:Hi All,
I have applied for I140, 485 on Nov12th,2004 based on pre-approved labor. Is it possible to apply for a 7th year extension (my visa expires 03/2005).
---------- YES, file 7th year with I-140 filing reciept or I-485 filing reciept. if the I-140 gets denied then EAD AP I-485 all will get denied, better file 7th year Now becase if they approve 7th year H1 it will be valid once approved(even if I-140 gets denied)
Also, during the 7th year extension, If I get married, will my spouse be given H4?
----- you need extension approval in hand to get her H4 visa. at this time service centers are approving I-485 in less time, better get married ASAP and bring her on H4 and once she reaches US then file her I-485, EAD, AP
thanks
rk
great guru
Volunteer Moderator
ramanik said:Thanks for your response.
I was worried if we are allowed to file for extension based on pre-approved labor. Your answer helps a lot.
Through "substituition of alien" you can not extend your H1 for 7th year. You never filed a labor certification or I 140 which is 1 yr old. If your I 140 is pending more than 365 days in INS you can extend. But your present case - not
thx
rk
I also disagree with "Great Guru". The Yates memo dated April 24. 2003 states:
"Finally, the limitation on the total period of stay does not apply to H-I B aliens when:
365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant; or
365 days or more have passed since the filing of an EB immigrant petition."
Clearly, if the alien is actually substituted on an approved LC and uses the approved LC to file an I-140, the alien is able to extend for a 7th year since "365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is . . . used by the alien to obtain status as an EB immigrant".
In fact, the Yates memo makes this very clear in the final sentences, which state:
"If the H-lB nonimmigrant is requesting an extension based upon a labor certification that has been pending 365 days or more but was certified in the name of another alien, the H-1 B nonimmigrant may be eligible for the extension provided the H-1 B petitioner submits evidence that the beneficiary is using the labor certification to obtain status as an EB immigrant. This means that the alien will be the beneficiary of a pending or approved Form 1-140 based on that labor certification."
"Finally, the limitation on the total period of stay does not apply to H-I B aliens when:
365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is required or used by the alien to obtain status as an EB immigrant; or
365 days or more have passed since the filing of an EB immigrant petition."
Clearly, if the alien is actually substituted on an approved LC and uses the approved LC to file an I-140, the alien is able to extend for a 7th year since "365 days or more have passed since the filing of any application for labor certification, Form ETA 750, that is . . . used by the alien to obtain status as an EB immigrant".
In fact, the Yates memo makes this very clear in the final sentences, which state:
"If the H-lB nonimmigrant is requesting an extension based upon a labor certification that has been pending 365 days or more but was certified in the name of another alien, the H-1 B nonimmigrant may be eligible for the extension provided the H-1 B petitioner submits evidence that the beneficiary is using the labor certification to obtain status as an EB immigrant. This means that the alien will be the beneficiary of a pending or approved Form 1-140 based on that labor certification."
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