Hopes for H1-B extension while I-140 under appeal

[Strat]

I found some info which can be useful from http://www.murthy.com/news/UDh121st.html

H1B Extensions Approvable until the LC or I-140 is Finally Denied

The Yates Memo requires the BCIS to approve the H1B one-year incremental extensions until a final decision is made to deny the labor certification or I-140 petition or to grant or deny the foreign national's application for an immigrant visa or adjustment of status. If a labor certification is denied, an appeal may be filed within 35 days of the decision. The Yates Memo provides that a decision that has been appealed will not be considered by the BCIS to be a final decision until a decision is issued on the appeal. Accordingly, a labor certification denial that has been appealed does not sever the H1B status holder's ability to obtain a one-year incremental extension of H1B status. This indeed is a favorable interpretation of the law since it would enable the H1B employee to keep extending H1B status while the appeal is pending.

This might give some hope that its possible to extend the H1-B while the I-140 is under appeal.

Hope it proves useful to everyone who are sailing in the same boat as me !!

 

[tarun75us]

Seeking H1B 8th year extension; I-140 denied;appeal denied;what are my options

My future employer (GC employer) filed my PERM (more than 365 days pending) before my H1B year (with H1B employer) 6 began in Oct 2010; PERM was approved. In my 6th year, during March 2011, GC employer filed I-140 and it was denied in Aug 2011 on \'Ablity to Pay\' issue. The I-140 denial was appealed and on that basis, I was granted 7th year extension on H1B - that expires on Nov 28th 2012. My 8th year H1B extension was filed by my H1b employer on Sep 5th 2012.While the H1b was in process, I received notice of my I-140 appeal dismissal last week on Oct 10 2012.

My question is how do I qualify for 8th year H1B extension (using PERM 365 day pending rule) now (8th Yr extension already filed on Sep 5 2012):

A)Should an MTR be filed?
B)Appeal the denied appeal? (Is that even possible?)
C)A new I-140 be filed? (may not be possible unless this is the only option left for h1b extension)

Note: I am only looking to receive the H1b extension (I-140 may not be approved due to \'Ability to Pay\' issue).
Please also note that my H1b employer (current employer) has started a PERM last month -filed on Sep 11th 2012.

If h1b cannot be extended, what are my options to stay in the country. I want to wait until my current PERM is approved and I-140 premium processed (thru H1B employer) so I again become eligible for h1b extensions