If 140 is denied close to H1-B 6 yr. expiry

R

rcodavali

Registered Users (C)
LC for GC approved.

Filed 140/485/EAD on Oct 7 2004.

RFE(intent to deny) received in Jan 2004(reason: Company financial situation)

Accepted response for RFE by INS on April 22 2004 but looks like they have not touched it yet.
My company did a very good job in submitting all the docs necessary to satisfy INS.

Current status 140/EAD on HOLD.

Sent inquiry through liasion to lift the HOLD on 140/EAD on June 24th 2004.

My current H1-B duration May 1 1999 to May 1 2004.

For back up plan (if my 140 is rejected to gain more time for re-filing/appealing) my lawyer says I do not have time, if
the rejection from INS is received close to May 1 2005(current H1-B expires).

For that he applied another(secondary) labor so that if my current 140 is rejected then I can extend my H1-B for more

than 6 yrs based on my secondary labor that will be pending for a year by that time and that will give more time to

appeal/refile 140. However he filed that secondary labor on May 20 2004. so my extended H1-B can only start from May 20

2005. What is my status between May 1 2005- May 20 2005?

For that this is the explanation he gave, which I do not understand it all, can some one please help me out here to

interpret it properly and the list of things I am supposed to do as I need to know this information by today/tomorrow and

my lawyer is not available to explain it to me.

"
THE CANDIDATE HAS HELD H-1B STATUS SINCE MAY 1, 1999

HE WILL HAVE ACQUIRED 6 YEARS IN H-1B STATUS ON 5/1/2005

AS HAVE DISCUSSED, WILL NEED TO SHOW LABOR CERT HAS BEEN PENDING AT LEAST
ONE YEAR BEFORE HE HAS ACQUIRED 6 YEARS IN H-1B STATUS IN ORDER TO GET
ADDITIONAL H-1B EXTENSION'S

IF IT TURNS OUT THAT IMMIGRATION SERVICE DENIES THE I-140, THEN BY 5/1/2005
CANDIDATE WILL NEED TO HAVE 'STOPPED THE H-1B CLOCK' FOR A FEW WEEKS.

(WHY? BECAUSE IF THE LABOR DEPT RECEIVES THE LABOR CERT ON 5/20/04, FOR
EXAMPLE, IT WILL NOT HAVE BEEN PENDING FOR 1 YEAR BY 5/1/2005)

BEST WAY TO DO THIS WOULD BE TO APPLY FOR A CHANGE OF STATUS FROM H-1B TO
B-2. HOLD B-2 STATUS FOR AS LONG AS NEEDED. THEN DEPART AND RE-ENTER TO
RE-ACQUIRE H-1B STATUS

AS IT MAY TAKE A LONG TIME TO GET B-2 CHANGE OF STATUS ADJUDICATED, WOULD
SUGGEST FILING NO LATER THAN SEPTEMBER 1,, 2005 IF NEEDED.

"





Here are my concerns


"I wanted to know what are the consequences of my 140 beign rejected.

Can I still be living and working after May 1 2005(my H1-B expires) while we are appealing/refiling 140?.

What are the things need to done for that? We did apply my secondary Labor certi by middle of May 2004 say May 20 2005,

this mean I can get my H1-B extension only starting from May 20 2005 and I can continue to work on extended H1-B starting

from May 20 2005? Is this Correct?

What do I need to do to live/work in the country between May 1 2005 and May 20 2005?

My lawyer did mention(see above) something about holding B2 for about a month between now and April 2005? Is this because

we are deducting 1 month of my 6 yrs H1-B clock and applying this 1 month after May 1 2005?

If this is Yes then, Can I hold B2 anytime for a month, example Oct 1 2004 to Oct 30 2004? How do I get back to H1 after

that month ?Can I still be working while I am on B2 status?
"

Please advice the chronological things I need to do and the different status I will be in according to my lawyer?.

What are the chances of my 140 getting rejected?.

thanks a lot in advance for your response and patience.
 
Thank you very much UnitedNations, u r of great help.

Let me see If I understand it correctly, pelease confirm.

If untill May 1 2005 I do not get any reply from INS, I can go ahead and get the 7th yr. H1-B extension, correct?

If INS denies my 140 well before May 1 2005, we appeal and no response on this appeal from INS untill May 1 2005, I can still go ahead to get my 7th yr. H1-B extension, correct?

If INS denies my 140 well before May 1 2005, we appeal and INS denies the appeal also before May 1 2005.
OR
if INS denies my 140 close to May 1 2005, no time for appeal.

Then you said that I can try to recapture any time that I spent outside of the country.
In Nov 1999 - I was in India for around 40 days(still beign paid by company and effectively on H1 during this time).
In Nov 2000 - I was in India for around 35 days(still beign paid by company and effectively on H1 during this time).
In Dec 2001 - I was in India for around 35 days(still beign paid by company and effectively on H1 during this time).

Will this do? If yes then why did my Lawyer was talking about changing to B2 in between?.

Do I need to make some kind of application filing to extend my H1-B after May 1 to num of days I was not in the country? and will I get another H1, whose start dates are May 1 2005- May 20 2005 (say).)

I am also so confused with this intermediate B2 staus change, leaving the country etc mentioned by my lawyer.


thanks
 
OK now my only concern should be in this case only
"If INS denies my 140 well before May 1 2005, we appeal and INS denies the appeal also before May 1 2005."
In all the other 3 scenarios I will be able to get 7th yr. extension based on the orig labor certi and that ext. is valid

even if INS rejects the 140 case after May 1 2005, correct?


I also undersatand why my lawyer is talking abt B2 status change to recapture the required time.(he is also talking in

case of that above scenario only and that my vacation time might not be used as recapture time), correct?

My lawyer said

"
I WANT YOU TO HOLD B-2 STATUS FOR ABOUT 1 MONTH SOMETIME BETWEEN
NOW AND APRIL, 2005.
AS IT MAY TAKE A LONG TIME TO GET B-2 CHANGE OF STATUS ADJUDICATED, WOULD
SUGGEST FILING NO LATER THAN SEPTEMBER 1, 2004 IF NEEDED.
"

So once I change my status to B2 my H1B clock is stopped , correct?

When we apply to B2 do we mention the time duration?(say for 1 month only).

Then After that duration does my H1-B clock automatically starts? or do I need to re-apply for H1-B during this one month,

which when approved will expire with the additional recaptured time?.

Basically how does the back/forth transfers of H1-B to B2 to H1-B work?

Is it recommended to be done in my case? what are the cons? As I am concerned that while I am in this B2 state, will my

140/GC process still be active, as we are only speculating that the 140 will be denied.

Why did my Lawyer talk about leaving the country to get back to H1-B status?

thanks again.
 
H1-B 7th year extension

Instead of relying on B2 and vacation time, I would say, try and file the H1-B 7th year extension by Nov 2004 (6 months before the actual expiry of H1-B) using the current I-140 pending status. H1-B should get approved unless I-140 gets rejected earlier. If in doubt, do Premimum processing and get the H1-B secure for 7th year until May 2006. Then no need to worry about I-140 rejection since there is sufficient time to appeal and no need to go out of the country or change visa also.

rcodavali said:
Thank you very much UnitedNations, u r of great help.

Let me see If I understand it correctly, pelease confirm.

If untill May 1 2005 I do not get any reply from INS, I can go ahead and get the 7th yr. H1-B extension, correct?

If INS denies my 140 well before May 1 2005, we appeal and no response on this appeal from INS untill May 1 2005, I can still go ahead to get my 7th yr. H1-B extension, correct?

If INS denies my 140 well before May 1 2005, we appeal and INS denies the appeal also before May 1 2005.
OR
if INS denies my 140 close to May 1 2005, no time for appeal.

Then you said that I can try to recapture any time that I spent outside of the country.
In Nov 1999 - I was in India for around 40 days(still beign paid by company and effectively on H1 during this time).
In Nov 2000 - I was in India for around 35 days(still beign paid by company and effectively on H1 during this time).
In Dec 2001 - I was in India for around 35 days(still beign paid by company and effectively on H1 during this time).

Will this do? If yes then why did my Lawyer was talking about changing to B2 in between?.

Do I need to make some kind of application filing to extend my H1-B after May 1 to num of days I was not in the country? and will I get another H1, whose start dates are May 1 2005- May 20 2005 (say).)

I am also so confused with this intermediate B2 staus change, leaving the country etc mentioned by my lawyer.


thanks
Click to expand...
 
If no response from INS till Nov 1 2004 then apply H1-B 7th yr. ext. with premium processing for orig LC/pending 140, correct?

If 140 is rejected much before Nov 1, appeal immediately, no response on appeal from INS till Nov 1 2004 then apply H1-B 7th yr. ext. with premium processing for orig LC/appealed 140 on Nov 1 2004, correct?

If 140 is rejected much before Nov 1, appeal immediately, and appeal also rejected before Nov 1 2004 then the orig LC is out of scope and try to gain the recapture time by changing the status to B2, correct?

In any case I would like to undrestand the process/pros/cons of this B2 status and the reason for departure/re-entry, can you please try to respond/answer my post number # 6.

U guys have beign of great help, I will recommend this option to my lawyer,
I wonder why he didnt advice this.


thanks a lot
 
unitednations said:
BTW, once you appeal and go to AAO it will take a very long time (six months to a year).
.
Click to expand...

Well assuming that this is true then it means that I am totally assured of my 7th year extension irrespective of what will happen to my current 140, as if it is denied before Nov 1 2004 I will appeal(that will generally take time) and then apply for my H1-B ext with pre-processing option.

Again United Nations and others thanks very much, u guys have a lot of info/knowledge and its very commendable that u r using it to help ppl like me.

I will post if I have more doubts :)....

thanks
 
rcodavali said:
Well assuming that this is true then it means that I am totally assured of my 7th year extension irrespective of what will happen to my current 140, as if it is denied before Nov 1 2004 I will appeal(that will generally take time) and then apply for my H1-B ext with pre-processing option.
Click to expand...

I posted the same Q to my lawyer and he said
"I-14O IS NO LN0GER 'PENDING' IF DENIED BY SERVICE CENTER AND ON APPEAL TO AAO"

This means that if my 140 is rejected before Nov 1 2004 and I appeal then I cannot apply for my 7th yr. H1-B ext. on this orig LC/140 as now my case is "ON APPEAL", correct?

thanks
 
rcodavali said:
I posted the same Q to my lawyer and he said
"I-14O IS NO LN0GER 'PENDING' IF DENIED BY SERVICE CENTER AND ON APPEAL TO AAO"

This means that if my 140 is rejected before Nov 1 2004 and I appeal then I cannot apply for my 7th yr. H1-B ext. on this orig LC/140 as now my case is "ON APPEAL", correct?

thanks
Click to expand...

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.


In the above article it specifical mentions regarding "LC appeal" only and not reg. "140 appeal", let me know if my interperetation is correct?
 
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