If you get an approved I-140 for but 365 days not passed.

[rchandran_19]

Hi all,

I am trying to get an answer to this question, but nobody has a definitive answer. Please if anybody, out there know, do respond to the query.

Q) I have filed my LC, go approved, then filed my I-140, also got approved. the whole process took about 8 months. But the bad part is, 365 days have not passed since filing the EB Immigration petition. In other words I had only 10 months to complete my 6 years of H1 (including all recaptured days), when my LC was applied.

Now my lawyer says, that since i have not fulfilled the rule of 106 of AC21...i must leave the country(US) for 2 months and return and then apply for a 3 year extension....is it true???
I was arguing with my lawyer with the AC21 104(c) rule, that clearly states that you can apply for apply for h1b, if you have approved i-140 and waiting for your PD.

Please, I hope there are some out there who are in my situation, know better.
I appreciate all your kind help in shedding some light into this
AC21 104(c) and AC21 106 rules, and how to interpret them, with regrds to my situation.

Thanks,
Chandran

 

[GotPR?]

I am very curious what the lawyer's logic that 104 won't be applicable is.
If 104 is not applicable in this case, what case 104 can be applied ?

If s/he says one has to have 365 days old LC even for the case I-140 is approved, there is no case that 104 stands alone.

http://www.uscis.gov/graphics/lawsregs/handbook/ac21guide.pdf#search="AC21 104"

You can apply for 3 years extension,