H1B 7th year possible if EB2/NIW (self petition) pending for more than a year ?

H

HelpingHand

Registered Users (C)
Hi

I will reach my 6th year H1B at the end of January 2009. I have filed I-140 EB2/NIW, self petition during 2nd week of December 2007. So, I will reach 1 year since filing of I-140 in December 2008. If I don't hear a decision on my pending I-140 by December 2008 (ie, more than a year since filing), can I extend my H1B beyond 6 years ? (I am retrogressed). I know, if one files labor certification 365 days prior to H1B expiry, then 7th year extension is possible. However, I am not sure if it is possible to extend H1B beyond 6 years based on a pending EB2/NIW/I-140 self petition. Thanks,

--HH
 
Someone here in the forum said yes. My attorney said no. Your mileage may vary. I would say ask your attorney and give it a try using premium processing so you don't go out of status accidentally if they deny it.
 
Yes. You can do it.

SECTION 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

· Allows H-1B nonimmigrants with pending I-140s to extend their status beyond the six-year limit if 365 days or more have passed since the original filing date of their labor certification applications or their I-140 filing date. The extensions shall be granted in one-year increments until a final decision is reached on their permanent residence.
http://www.usavisanow.com/h1bs2045sum.html

Drdoctor1
If your I-140 is approved you can get 3 year extension as opposed to 1 year.

Before I-140 approval you will get 1 year extension for three years.
After I-140 approval you can get 3-year extension.

Edit
If a timely extension is filed (i.e. before the expiration of the current status), regulations allow individuals in H-1 status to continue to work for the same employer for up to 240 days while the extension petition is pending at USCIS. A new I-9 form must also be completed in the department in order for the H-1 holder to continue.
 
Last edited by a moderator:
Thanks for the replies. I will check with the lawyer. But, I am very skeptic on this. On the other hand, I am thinking of filing I-140 through employer (with labor), and as I understand, if you are within 60 days of your 6year H1B expiry, then premium processing on employer based I-140 is possible. Do you know how much time it takes for the labor process ?. (University, Research position). Thanks,

--HH
 
NIW_help said:
Yes. You can do it.

SECTION 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

· Allows H-1B nonimmigrants with pending I-140s to extend their status beyond the six-year limit if 365 days or more have passed since the original filing date of their labor certification applications or their I-140 filing date. The extensions shall be granted in one-year increments until a final decision is reached on their permanent residence.
http://www.usavisanow.com/h1bs2045sum.html

Drdoctor1
If your I-140 is approved you can get 3 year extension as opposed to 1 year.

Before I-140 approval you will get 1 year extension for three years.
After I-140 approval you can get 3-year extension.

Edit
If a timely extension is filed (i.e. before the expiration of the current status), regulations allow individuals in H-1 status to continue to work for the same employer for up to 240 days while the extension petition is pending at USCIS. A new I-9 form must also be completed in the department in order for the H-1 holder to continue.
Click to expand...

Thanks NIWHELP for the information. The link you supplied definitely is of help when I take up the issue with the lawyer.

--HH
 
It is possible, my (employer) lawyer says

Friends

My employer's law firm says it is possible to take 1 year extensions on H1B (beyond maximum 6 years) if I-140 petition is pending more than 365 days (I asked specifically about I-140 based on EB2/NIW self-petition). So, this confirms that NIWHELP is right.

Thanks,

--HH
 
I was given a 7th year extension on the basis of my I-140 petition (under EB2/NIW) that was filed in 2/08. Your actual situation may differ slightly as my 7th year would begin in 2010.
 
rake said:
I was given a 7th year extension on the basis of my I-140 petition (under EB2/NIW) that was filed in 2/08. Your actual situation may differ slightly as my 7th year would begin in 2010.
Click to expand...
Doesn't the I-140 need to be more than 365 days pending for 7th year extension ?. In your case, if I-140 was filed in 2/08, then it is not yet more than 365 days since its filing. Then how can the 7th year extension possible ?. I am a bit confused (unless you meant to say that I-140 was filed in 2/07).
 
No, actually, my I-140 was filed this year. I was also under that impression that it had to be pending for at least 365 days. but when i changed jobs and applied for transfer of H1, i got the approval based on this I-140 petition till the end of the contract, which was a year more than my 6yrs of H1B
 
Double check with an attorney. USCIS approves petitions in error all the time, but it doesn't actually give you status. Even their mistake is your fault, in their view.
 
nscagony said:
Double check with an attorney. USCIS approves petitions in error all the time, but it doesn't actually give you status. Even their mistake is your fault, in their view.
Click to expand...
I second that. I have heard couple of stories like that. You may want to double check your application/status.

Meanwhile I found the law which states the 7th year extension is possible for all EB cases if I-140 is filed 365 days before the 6th year H1 expiry. The link is here. Page 10 (towards the end of the page) of the above document says


The limitation on the total period of stay does not apply to H-1B aliens when, as of the date of filing the extension request:

  • 365 or more days have passed since the filing of any application for labor certification, Forms ETA-750 or ETA-9089, that is required or used by the alien to obtain status as an EB immigrant; and the labor certification, if approved, has not been revoked, is unexpired or has been timely filed with an EB petition within the labor certification’s validity period; or

  • 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or

  • The alien is the beneficiary of an approved EB immigration petition and is not able to file to adjust status to U.S. permanent legal residence based on the unavailability of an immigrant visa number.


Must admit that I haven't gone through the whole document. So, it is better to double confirm with a lawyer always.

--HH
 
rake said:
No, actually, my I-140 was filed this year. I was also under that impression that it had to be pending for at least 365 days. but when i changed jobs and applied for transfer of H1, i got the approval based on this I-140 petition till the end of the contract, which was a year more than my 6yrs of H1B
Click to expand...
your case was approved by error.
when my friend wanted to file the I-140, he was told to do so before 365 of his H1B expiration. It is the law.
u can also get EAD by applying for I-140. but when your case is denied you are illegally working here for the entire EAD duration.
the only way is to go back to your own country stay there for a year and apply H1B then you can legally reapply for I-140.

There is one more chance if you have visited your home country in the past 5 years and if that period accounts to or equal to your stay here for the last year then you can claim that. Because 6 year means 6 times 365 days present in US. so for example if you have stayed over 2-3 months outside US for your 5 years then you can use those days for your last 1 year stay. Then discuss this with your attorney.

u have many hurdles to cross. even by some mistake your I-140 is approved, you will be questioned during I-485 process, even if that fails you can still be stripped off your status when you apply for citizenship.

It should be a miracle to cross all these hurdles.
 
EAD tied to I-485 not I-140, as I understand

NIW_help said:
your case was approved by error.
when my friend wanted to file the I-140, he was told to do so before 365 of his H1B expiration. It is the law.
u can also get EAD by applying for I-140. but when your case is denied you are illegally working here for the entire EAD duration.
the only way is to go back to your own country stay there for a year and apply H1B then you can legally reapply for I-140.......
Click to expand...
As I understand, EAD is tied with I-485 and not I-140. So you can apply for EAD only if you have an approved I-140 (except in cases of concurrent filing) and if you file an I-485 .
 
I have the new I-94 with me now, but I will ask my HR or attorney to check this again.
 
i think it is pretty clear that if one files for I-140 NIW/EB1, one can get h-1b extn beyond 6 yrs if the i-140 is pending for 365 days or more. i am filing for 7th yr h-1b extn this month but my 6th yr h-1b expires in dec08 - the reasoning is that based on the NSC processing times, i don't anticipate a decision on my i-140 until dec. let's see what uscis does.
 
rake said:
No, actually, my I-140 was filed this year. I was also under that impression that it had to be pending for at least 365 days. but when i changed jobs and applied for transfer of H1, i got the approval based on this I-140 petition till the end of the contract, which was a year more than my 6yrs of H1B
Click to expand...

As for the question regarding the approval of 7th year H1 which starts in 2010 despite the fact I140 didn't reach 365 days yet, it is possible depending on the situation.

There is a CIS memo stating that I-140/LC is NOT necessary to be 365 days old on the day of H1 filing. They say if I140/LC WILL be 365 days old upon start date asked in H1 petition, they can file for 7th year H1.

Suppose someone finished 4 years of H1 and 2 more years to go and he filed I-140/LC last week.
His H1 will expires in a month and he filed H1 today. He can ask for 3 years including 7th year as it is clear I-140/LC will reach 365 days upon the start date of 7th year.

Page 8, Q&A2
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf
 
Last edited by a moderator:
GotPR? said:
As for the question regarding the approval of 7th year H1 which starts in 2010 despite the fact I140 didn't reach 365 days yet, it is possible depending on the situation.

There is a CIS memo stating that I-140/LC is NOT necessary to be 365 days old on the day of H1 filing. They say if I140/LC WILL be 365 days old upon start date asked in H1 petition, they can file for 7th year H1.

Suppose someone finished 4 years of H1 and 2 more years to go and he filed I-140/LC last week.
His H1 will expires in a month and he filed H1 today. He can ask for 3 years including 7th year as it is clear I-140/LC will reach 365 days upon the start date of 7th year.

Page 8, Q&A2
http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf
Click to expand...

Looks like you are right. From page 112, the last paragraph of this document, it seems that it is possible to combine pre 6th year and post 6th year increments. So, 365 days prior filing doesn't seem to be required. The above document says:

(C) Combined pre and post 6th year extension requests.
USCIS will grant, in certain instances, extensions that request time remaining towards the 6-year maximum under 214(g)(4) and additional time allowed under AC21 § 106(a).

7th year extension requests under AC21 §106(a) may be made in a petition that also contains a request for an extension of stay that reaches the maximum 6 year limit. USCIS adjudicators should first determine the amount of H-1B extension time that may be granted to reach the 6 year limitation of stay, then determine if the labor certification or I-140 petition was filed at least 365 days by the conclusion of the 6 year limitation of stay. If so, then the one year AC21 106(a) extension may be granted. However, in no case can an extension be granted for more than a three year period of time. If the alien beneficiary would no longer be in H-1B status at the time that 365 days from the filing of the labor certification application or immigrant petition has run, then the extension of stay request cannot be granted.
 
You must log in or register to reply here.
Top