IMPORTANT ::: approved labor vs pending labor for 6th year extension

[atrajan]

is there any difference between approved and pending ..

The 6th year extension law states that ...

"This provision allows for extensions of H1B status beyond the standard six-year limitation if the person is the beneficiary of a labor certification, which has been filed and pending for one year or longer"


I have an approved labor which was filed more than 365 days before. But i am not going to file for I 140 with it ...can i still file for H1 B extension using it. The law says ...only for pending labor ... Can an approved labor also be considered a pending labor?

can the guru's comment on this please.

thank you.
Rajan

 

[sreddy227]

Doesn't necessarily have to be pending

Looks like the labor certification doesn't have to be necessarily pending in order to get a 7th year extension. here is what was posted on www.immigration-law.com

//
H-1B Extension Beyond Six Years Provision:

SEC. 11030A. EXTENSION OF H-1B STATUS FOR ALIENS WITH LENGTHY ADJUDICATIONS.

(a) EXEMPTION FROM LIMITATION- Section 106(a) of American Competitiveness in the Twenty-first Century Act of 2000 (8 U.S.C. 1184 note) is amended to read as follows:

`(a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act (8 U.S.C.1101(a)(15)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of the following:

`(1) Any application for labor certification under section 212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)), in a case in which certification is required or used by the alien to obtain status under section 203(b) of such Act (8 U.S.C. 1153(b)).

`(2) A petition described in section 204(b) of such Act (3 U. S.C. 1154(b)) to accord the alien a status under section 203(b) of such Act.'.

(b) Extension of H-1B Worker Status- Section 106(b) of American Competitiveness in the Twenty-first Century Act of 2000 (8 U.S.C. 1184 note) is amended to read as follows:

`(b) Extension of H-1B Worker Status- The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made--

`(1) to deny the application described in subsection (a)(1), or, in a case in which such application is granted, to deny a petition described in subsection (a)(2) filed on behalf of the alien pursuant to such grant;

`(2) to deny the petition described in subsection (a)(2); or

`(3) to grant or deny the alien's application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence.'.
//

all it says is 365 days must have been passed since the filing of labor cert/I-140 and doesn't say the application has to be pending. hope this answers your question. I would suggest don't take my word for it, talk to your attorney.

Sreddy227.

 

[atrajan]

Thanks for the reply. I was thinking so...But on the other hand...

Your H1B can be extended in increments of 1 year as long as I 140 or later stages of GC are rejected. Now if I do not use the labor to file I 140 ...there is no case of rejection.

Does that mean I can keep extending my H1 B based on labor i have approved infinitely? Any attorneys in the forum ...can you help me out in this.