source MurthyBulletin
VOL. VIII, no. 15; April 2002, week 2
Posted : April 12, 2002
Seventh-Year H-1 Extensions
AILA members advised the INS that the Vermont Service Center (VSC) was not
approving AC21 "7th-year H-1" extensions when the I-140 is approved but no
I-485 is pending. Previously there was confusion in interpreting the AC21
law on this issue because the wording is that the I-140 must be "filed." The
problem will be addressed with the VSC to ensure compliance with the other
INS Service Centers.
The INS previously agreed with the AILA Liaison during its meetings that an
H1B employee is eligible for the 7th-year H1B status even if the I-140 has
been approved and the I-485 has not yet been filed.
H-1 Extensions : Same Employer, Same Position
The question was asked, what legal standard the INS uses when making a
decision on a request for an H-1 extension involving the same petitioner and
same position as the prior H-1 approval. Earlier, INS stated a position that
the Examiner should not issue a Requests for Evidence (RFE) for such
petitions on issues pertaining to eligibility for the H1B status, like
beneficiary\'s job duties satisfying the "specialty occupation" criteria,
unless the initial approval involved "gross error." However, lawyers /
practitioners are seeing detailed RFEs and often denials even in cases of
this type. The INS indicated they would revisit certain issues in the
petition. In particular, INS could look into whether the time period
requested is justified and whether the position is bona fide. Though, it
does not make good "business practice" for the INS to do so in each case. A
detailed review of the case, therefore, will be done only when the INS
determines it is appropriate.
VOL. VIII, no. 15; April 2002, week 2
Posted : April 12, 2002
Seventh-Year H-1 Extensions
AILA members advised the INS that the Vermont Service Center (VSC) was not
approving AC21 "7th-year H-1" extensions when the I-140 is approved but no
I-485 is pending. Previously there was confusion in interpreting the AC21
law on this issue because the wording is that the I-140 must be "filed." The
problem will be addressed with the VSC to ensure compliance with the other
INS Service Centers.
The INS previously agreed with the AILA Liaison during its meetings that an
H1B employee is eligible for the 7th-year H1B status even if the I-140 has
been approved and the I-485 has not yet been filed.
H-1 Extensions : Same Employer, Same Position
The question was asked, what legal standard the INS uses when making a
decision on a request for an H-1 extension involving the same petitioner and
same position as the prior H-1 approval. Earlier, INS stated a position that
the Examiner should not issue a Requests for Evidence (RFE) for such
petitions on issues pertaining to eligibility for the H1B status, like
beneficiary\'s job duties satisfying the "specialty occupation" criteria,
unless the initial approval involved "gross error." However, lawyers /
practitioners are seeing detailed RFEs and often denials even in cases of
this type. The INS indicated they would revisit certain issues in the
petition. In particular, INS could look into whether the time period
requested is justified and whether the position is bona fide. Though, it
does not make good "business practice" for the INS to do so in each case. A
detailed review of the case, therefore, will be done only when the INS
determines it is appropriate.