H1B Extension with I-140 pending

[sprocket]

The situation: H1B 6yrs. expires this week 6/3. My LC PERM was certified in January 2006, my I-140 has been filed in late March 2006 and is currently pending. Both 365 day rules for LC and the I-140 do not apply. My lawyer has just filed for a 1yr. H1B extension to bridge the gap until my I-140 is approved (approx. 60-90 days from now) and keep me in status. I am aware this is sort of a "gray zone". What are my chances of getting the 1yr. extension?

How long will I stay in status after my H1B/I-94 expires? I definitely do NOT want to risk getting out of status and I'd rather spend two months abroad until the I-140 is approved, than risking to not be able to come back for a year.

 

[GotPR?]

Here is the fact stated in USCIS memo.

To be eligible for 1 year extension, your H1 start date in petition must be after 365days old of LC filing. It says if one is no longer on H1 status upon H1 start date, extension beyond 6 year is not applicable. I think it is the same way for I140 approval.
Since your H1 expires on 6/3, your H1 start date should be 6/4. If interpret memo straight, you are not eligible to 1year extension unless your I140 is approved before 6/3... If start date is set, say, 8/30,... then that is gray zone. I do not know it's acceptable with leaving some gap between expiration and start dat.

what start date did lawyer put in petition ?

 

[sprocket]

Thank you for the response. Yea, that law doesn't make any sense. You can get an extension, if your LC is pending with no I-140 even filed, but not, if it already approved with an I-140 pending *shakes head*? So, what are the options? Since the H1B extension has been filed, I will still remain in status until the I-129 is being ruled upon, correct?

If that extension is denied, do I still have the option to leave and remain in status until the I-140 (predicted approval: July/August) or should I leave before the end of the week, before the I-94 expires? It is absolutely mandatory that I HAVE to stay in status. I can not afford to get out of status and not be able to return on another H1B for another year. My lawyer can still request revalidation of the H1B to subtract the days I was out of the country until the I-140 gets approved. In any case, I would stay out of the country until the I-140 got approved and the new 3-yr. I-129 has been filed, approved and stamped.

 

[GotPR?]

Thank you for the response. Yea, that law doesn't make any sense. You can get an extension, if your LC is pending with no I-140 even filed, but not, if it already approved with an I-140 pending *shakes head*?

no, no. To be eligible to 7th year extension, the either of the following must be met.
1. LC was filed more than 365 days ago(does not matter pending or approved).
2. I-140 is approved and your PD is retrogressed.

So, what are the options? Since the H1B extension has been filed, I will still remain in status until the I-129 is being ruled upon, correct?

I think you are still in authorized stay as long as H1 petition is pending. But remmeber, in theory, if I140 was not approved before the H1 start date after 6 year completion(including recaptured time abroad) , you are not eligible to 7th year in strict sense.

If that extension is denied, do I still have the option to leave and remain in status until the I-140 (predicted approval: July/August) or should I leave before the end of the week, before the I-94 expires? It is absolutely

if Extension was denied, staying beyond I94 expiration is considered overstay.

mandatory that I HAVE to stay in status. I can not afford to get out of status and not be able to return on another H1B for another year.

Some people is willing to go out of status less than 180 days, but I do not recommend that. The reason is one is it's illegal, another is H1 extension rule is clear and if it's not meeting the criteria, extension will not be granted and you have to leave anyway.

My lawyer can still request revalidation of the H1B to subtract the days I was out of the country until the I-140 gets approved.

This is the best you can do at this moment. if you have a month to recapture, you have a chance of I140 approval.

BTW, you said your LC was certified in Jan, but you did not say when it was filed.

 

[sprocket]

I have nothing to recapture now, but I WILL have something to recapture, if I would leave end of the week and return when the I-140 (and subsequently the 3yr H1B extension has been approved). In the very worst case it'll be about 2 months + 10 days for the "turbo H1B".

My question is: When will I EXACTLY be ineligible to not apply for a H1B extension? At the end of the I-94? Or with a grace period of overstay? Until the I-129 that has been filed this week has been approved or denied?

My comment about the 365 rule was this: You can get an 1yr approval if the LC is pending, regardless of the status, but NOT if it has been already approved with an I-140 pending, just because they were faster than you thought to rule upon it. Makes sense? Not really.

I guess my lawyers screwed up a little bit here by delaying everything until the last minute. I saw it coming, but my hands are tied, since I can't do anything to make them file anything. Their original intent was to concurrently file for the I-485 with Advance Parole and EAD. I even did my medical in February, but, oops, suddenly they can't file because EB3 is not current. The irony of it all, I did not realize they did file for EB3, because I would even be eligible for EB2 with a bachelors and 10 years of work experience. In that case, I would have my EAD and Advance Parole now, because EB2 is current. *sigh*

I guess I am just one of those cases falling through all legislative cracks.

 

[arouncoumar]

Time is very short for you. USCIS came out with premium processing for I140. You have to see if its already into effect and can you you do premium for an existing. That mite help a little.

 

[sprocket]

There is no premium processing for I-140 - I just checked the USCIS website - only for non-immigrant petitions.

However, I "should" be alright. My petition is at the Nebraska SC with a processing date of 2/20 for I-140. Assuming everything progresses as usual my I-140 should be approved within one month (filed late March). The I-129 extension was filed this week and the current processing date is 4/2 (2 months), so there would be still time to file an admendment, in case the I-140 gets approved on time.

*phew* how much more exciting can it get?

 

[GotPR?]

My question is: When will I EXACTLY be ineligible to not apply for a H1B extension? At the end of the I-94? Or with a grace period of overstay? Until the I-129 that has been filed this week has been approved or denied?

Whenever you are not in status, you lose eligiblity to apply extension.
It's after I94 expiration.

My comment about the 365 rule was this: You can get an 1yr approval if the LC is pending, regardless of the status, but NOT if it has been already approved with an I-140 pending, just because they were faster than you thought to rule upon it. Makes sense? Not really.

Does not make sense because it is not true. As I said, it does not matter LC is pending or approved. 365 days old rules.


And again, i'll ask. When did you FILE LC.

However, I "should" be alright. My petition is at the Nebraska SC with a processing date of 2/20 for I-140. Assuming everything progresses as usual my I-140 should be approved within one month (filed late March). The I-129 extension was filed this week and the current processing date is 4/2 (2 months), so there would be still time to file an admendment, in case the I-140 gets approved on time.

Sorry, I do not see why it's all right. Memo says if one is no longer on H1 status when LC reaches 365 days milestone or I140 got approved, one is not eligible for 7th year.
How much time do you have to recapture ?

 

[sprocket]

What are you talking about? You are in status as long an extension is pending and has been filed before the expiration on the I-94. People overstay their visa's constantly with H1B extensions pending as long as their extension gets approved.

My I-140 should be approved within the next 30-45 days. The H1B extension takes about 2 months judging from the current processing times. As soon as my I-140 gets approved, my lawyer will file an amendment to the pending I-129.

Also, the law says that a "benificiary" of an immigrant petition (I-140) is in status, even if the I-94 is expired. Now, according to my lawyer that leaves room for interpretation, because "beneficiary" does not necessarilty mean "approved petition", it could be a "pending petition". Additionally, one might argue that, because of the huge backlog it wasn't possible to concurrently file the I-485 with the I-140. As soon as you file a I-485 your automatically in status until your case get ruled upon, even if you overstayed.

Besides, there is indeed a new premium processing for I-140 and EADs, but it's not really clear yet when it'll be in effect.

 

[GotPR?]

What are you talking about? You are in status as long an extension is pending and has been filed before the expiration on the I-94. People overstay their visa's constantly with H1B extensions pending as long as their extension gets approved.

Sorry, you are right.

Also, the law says that a "benificiary" of an immigrant petition (I-140) is in status, even if the I-94 is expired.

Could you point out the law ? As long as i know, I140 does not give any legal ground of stay.

My I-140 should be approved within the next 30-45 days. The H1B extension takes about 2 months judging from the current processing times. As soon as my I-140 gets approved, my lawyer will file an amendment to the pending I-129.

Again, i'd say the same thing.
If one did not meet 7th year requirement before H1 employment start date comes, in theory it is not eligible to 7th year.

 

[sprocket]

Regarding maintaining status while extension is pending:

Ajudicators field manual, 30.2: Extension of Stay for Nonimmigrants:
"Approval of a timely-filed I-129 extension is always considered nunc pro tunc, effectively forgiving the status violation for overstaying or continuing employment (with the same employer) which may have occurred between the expiration of the original admission period and the approval date of the extension. [See Matter of Dacanay 16 I&N Dec. 238 (BIA 1977).] "

Regarding pending I-140:

Ajudicators field manual, 30.3: Change of Nonimmigrant Status Under Section 248
"With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he or she cannot meet this burden and the application for change of status or extension of stay should be denied."

 

[GotPR?]

Regarding pending I-140:

Ajudicators field manual, 30.3: Change of Nonimmigrant Status Under Section 248
"With the exception of H-1 or L nonimmigrants who are covered by section 212(h) of the Act, because an alien who is seeking a change of status and/or an extension of stay bears the burden of establishing eligibility for the benefit sought, if he or she has filed an application for adjustment of status or an application for asylum (or even if he or she is the beneficiary of a permanent or temporary visa petition, unless the applicant can establish that he or she is the unwilling or unknowing beneficiary) he or she cannot meet this burden and the application for change of status or extension of stay should be denied."

What this is saying is if one applied for immigration petition, one is considered to have shown immigrantion intent and can not change thier non-immigrant status to another nor extend non-immigrant status unless s/he has H1/L1 which allows immigration intent.
This statement in AFM does not mean I140 can give legal stay.

BTW, page 7 of this link tells the requirement for 7th year.
http://www.uscis.gov/graphics/lawsregs/handbook/H1B_092305.pdf

 

[sprocket]

It is a "gray zone" and at the discretion of the officer. If the extension is approved, I'll be just fine. If it is denied, I might have to leave until the I-140 is ruled upon and come back on a 3yr H1B extension, since I am still in status "nunc pro tunc", until the petition is ruled upon.

However, if the I-140 is approved and there is time to file an amendment (most likely case), a 3yr approval of extension would be certain, since I did not violate my status.

At no point, I violate my status regardless of the expiration of the I-94.

 

[GotPR?]

It is a "gray zone" and at the discretion of the officer. If the extension is approved, I'll be just fine. If it is denied, I might have to leave until the I-140 is ruled upon and come back on a 3yr H1B extension, since I am still in status "nunc pro tunc", until the petition is ruled upon..

I think this is not precisely correct. If you already spent whole 6 years and have left the US before I140 approval, you can not get another 3 years H1 even with I-140 approval. In this case, next time you can come back is with immigration visa through CP if you want to go with this I-140 approval.

 

[sprocket]

Then tell me straight ahead: What are the options? I keep on hearing "trouble here, might be trouble there". Fact is that my company and the lawyers didn't file the I-140 on time to get it approved until the I-94 expires.

I-94 expires 06/04
I-140 filed 03/06
LC PERM filed 11/05, approved 03/06

/short rant start
I have worked my butt off here for 6 years, have proven ad nauseum that I am not taking any job from any American citizen, have always obeyed the law and lived in constant fear for 6 years that I might have to give up everything that I have established here. I have survived many lay-off periods, mergers and aquisitions, went through two lawyers and numerous changes in HR who I have constantly bugged since day one to file for permanent residency. The law even states that H1Bs are allowed (and even welcome) to adjust their status to a permanent residency and it is expected that most H1B become permanent residents. Legislation is currently being changed that it will be even easier to become a permanent resident based on employment (expedited processing, concurrent filing regardless of immigrant numbers) and now I am told, because of a 30-60 day overlap in processing at best that I might not be able to stay? It all makes perfect sense - NOT!
/rant end

How does AC21 make sense to protect people with an LC pending for 365 days or longer compared to someone who already HAS the LC approved? Isn't an approved LC a stronger indication that a permanent residency is indeed more justified? With PERM virtually noone has an LC pending that long anymore anyway. And I-140 are usually now pending for just about 3 months.

Where in this thread have I stated that I would be out of status for 180 days or more. We're talking 30-60 days here until the I-140 gets approved. What part of my intentions are frivolous?

 

[sprocket]

You shouldn't be blaming anyone. Why did you wait 5.5 years to start a greencard process?

Why did I wait? Are you kidding me? I have bugged the lawyers and the company since day one. I cannot file for an employment-based immigration petition. My employer has to. Who's to blame? Me? Sorry for getting aggravated, but this is an aggravating topic, because it affects me, my life and everything I have.

Why did I ask for help before I filed for the I-129 extension? The COMPANY has to file for it. I have ab-so-lu-tely nothing to do with it. I cannot do more than ask. They waited until the last minute. Not me.

Actually, I do not even know the exact filing facts of my I-129 extension. I would somehow doubt that they would file, if they weren't sure that it'll get approved. I don't know the exact argumentation of my lawyer. It could well be that they're using an earlier LC from someone else in the company. I simply don't know. I am just assuming here.

 

[GotPR?]

It's kind of too late. Ask lawyer if it is OK to leave before I94 expiration(with leaving some recapture time), and stay outside till I140 gets approved. Once it's approved, ask them to file H1 petition with H1 remaining time plus 3 years. That is the best i can think of at this late stage. If you do not have any time to recapture. i think it's over already.
I did not see anybody did this before and not even know if it is possible, so ask lawyer.

 

[braniand]

I am in a similar situation. And from all I read here one can file 7 year extension if
1. LC pending 365 days
or 2. I-140 approved and PD retrogressed.

How about if your PERM and I-140 are both approved, but you are not from a retrogressed country, but your I-485 is still pending. Then what? You can extend for 7th year? You can't extend for 3 years? Nothing? Please help. Once my I-140 is approved I will not have much time left in H1b. What should I do?

 

[sprocket]

UPDATE: I stayed in the US while my H1B (6 years) expired in early June. A few days before the expiration my lawyer filed an H1B extension beyond the 6 years WHILE my I-140 was pending. My I-140 (filed early April, EB3) was approved in late July and my H1B extension was approved yesterday. At no times, I have been out of status, didn't have to leave the country and ultimately saved myself a lot of hassles and expenses.

Of course, it was a close call, but my attourney's strategy has always been to await the I-140 approval, which was due to be approved inbetween the gap of the H1B expiring and the new approval. It would have probably been different, if the I-140 would have been denied or not ruled upon before the H1B extension got into the hands of an immigration officer. But... it worked.

Just to let you know that you don't have to take some of the advice from the self-proclaimed experts in here for granted. Get yourself a good immigration attourney and listen to his advice.