H1B Extensions under AC21 may be Filed Earlier!

L

lrk76

Registered Users (C)
http://www.murthy.com/news/n_h1bext.html

"The latest position of the USCIS is that H1B petitions may now be filed in advance of the date a Labor Certification (LC) or the I-140 petition has been pending at least 365 days, as long as the start date of the H1B extension is beyond the one-year point. Also, the USCIS reiterated its earlier position that an H1B may only be filed 6 months in advance of its expiration date."

C :confused: an anyone elborate on the above statement by giving an example how this effects?
 
lrk76 said:
http://www.murthy.com/news/n_h1bext.html

"The latest position of the USCIS is that H1B petitions may now be filed in advance of the date a Labor Certification (LC) or the I-140 petition has been pending at least 365 days, as long as the start date of the H1B extension is beyond the one-year point. Also, the USCIS reiterated its earlier position that an H1B may only be filed 6 months in advance of its expiration date."

C :confused: an anyone elborate on the above statement by giving an example how this effects?
Click to expand...

Let's take a person who applied for a GC on May 1, 2003. The person will reach the six year limit on H-1B status on May 5, 2004. In this example the person, under the old rule, (generally, a person must be eligible for the benefit sought (here an H-1B extension beyond six years) when the application is SUBMITTED to USCIS) would only become eligible for an H-1Bexension beyond six years on May 1, 2004 (when the LC had been pending for 365 days) and USCIS would need to RECEIVE the Petition before the person's H-1B status expires on May 5, 2004. That leaves a very small margin for error and the filing needs to be precisely handled since any mistake will cause an out of status condition that may have major consequences.

This new position changes nothing regarding the May 5, 2004 expiration date but it permits filing of an H-1B extension of status petition any time between November 5, 2003 (6 months before H-1B expiration of May 5, 2004) and the expiration of the alien's H-1B status on May 5, 2004. This is a big improvement and actually is a major departure from prior law.
 
Jim Mills said:
This is a big improvement and actually is a major departure from prior law.
Click to expand...

Agree this is a big improvement. In essence this is a major help for applicants whose LC was filed very very near into 5 years of H1. No more trying to time it ...
 
alren said:
Agree this is a big improvement. In essence this is a major help for applicants whose LC was filed very very near into 5 years of H1. No more trying to time it ...
Click to expand...

Well, it was a big improvement, and a big ERROR. USCIS now says they were wrong about this. Must be eligible at time of filing according the Headquarters.
 
7th Year H1-B and premium processing

Hi All

I would like to know if the 7th Year H1-B extension can be applied under premium processing.

If it is not, then normally how long will it take for H1-B extension to come through.

Thanks
pnarayan
 
Jim Mills said:
Well, it was a big improvement, and a big ERROR. USCIS now says they were wrong about this. Must be eligible at time of filing according the Headquarters.
Click to expand...


Jim is correct other lawyer has posted the same info
www.immigration-law.com

08/21/2004: 7th Year H-1B Extension Pending Immigration Proceedings

For certain H-1B professionals, the H-1B extension beyond the 6-year limit is critically important. Classical example is those H-1B professionals in the East and West coasts (for that matter, Southern Coast as well) who filed regular labor certification application around April 30, 2001 or earlier and suffer a limbo due to the horrible backlogs in the labor certification application processing. The AC 21 as amended by the DOJ Authorization Act allows them to extend H-1B status indefinitely one year in increment until their green card is finally adjudicated.
There are however late-starters who started the labor certification application close to their 5th year in H-1B status. Those who file a labor certification after reaching 5th year in H-1B are ineligible to apply for the 7th year extension since the USCIS requires that (1) no less than 365 days should have passed after filing the labor certification application or immigrant petition and before reaching the 6-year limit, and (2) 7th year extension can not be "filed" unless 365 days have passed after filing the labor certification application or immigrant petition. Accordingly, unless a labor certification or immigrant petition was filed at least 370 days or longer before reaching the 6-year limit, practically the 7-year extension cannot be filed and will be unavailable for these people considering the mailing or delivery time and holidays.
Caveat: Those who previously filed another labor certifications through another employers or as a dependent family members should seek legal counsel to see whether grandfathering is applicable to their situations making them still eligible for the 7th year extension even if the latest filing of a labor certification application or immigrant petition has yet to reach 365 days when they reach 5th year in H-1B. Wow, what a terrible way to explain the rule! Too technical, isn't it? Sorry.
 
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