Nearing 5 year Completion.. Need Help.......

S

Sablok Kumar

Registered Users (C)
My company is going to file for GC in March 2002.
I came to US on 02 July 1997. So basically more than 4.5 years have elapsed since I first came.
I\'ve a Bachelor\'s degree and 8 years progressive Experience. I would like to target for
b EB2 (RIR).

For RIR, the company has to post Ad in newspaper and paste notices on the premises. Then HR has to prepare documents supporting why they selected me for the position. This to-and-fro filing time between the HR and Attorney may take a few months and my concern is to file LC before my 6th year H1 starts (i.e. 02 July\'2002).
Is my concern Valid?

b 1st H1 stamp ------ 02 July 1997

b Valid till ------ 01 July 2003

b Time spent outside US ------ 12 weeks

b Assumed H1 Extension ------ 20 Sep 2003 (based on 12 weeks spent outside USA)

b Questions:
1)
With the current law, is it fine if I apply for LC before the 6th year starts i.e. 02 July\'2002 and I can file for extensions after completing 6 years and get my GC (assuming LC doesn\'t clear till 02 July\'2003).

b OR

before my 6 years expire, my LC NEEDS to be cleared and I file for I-140, and the I-140 receipt should be ok to file for further extensions till I get my GC.

2) During last few years I went on vacation (outside USA) and will do so this year, the total time spent outside will be 12 weeks (till 20 Sep\'2002).
I heard that I can get an extension on my H1 for 12 weeks (time spent outside) after my 6 years.
So, Do I consider that if I apply in EB2 (RIR) and it takes time beyond 01 July\'2002 to file for LC, my 6th year start will be considered as 20 Sep\' 2002 and even if the LC is cleared till July 2003 (WORST CASE SCENARIO) and I file for I-140 in August 2003, I can still file for extension and stay till I get my GC.

3) how much time does it takes for LC clearance in EB2 (RIR)?

b OR

b IF
4) I have to beat the deadline of 6th year Initial US Entry (02 July\'2002) to file for LC, what are my options?
Can I apply for EB2 Simply (and not go for RIR because RIR takes time to file). Doing this will probably help in getting at least the LC application through the process as I believe the date of filing/receipt by INS will count.
After applying for LC for EB2, can RIR be filed separately at a later date.

I\'m sure I tried to explain what I\'m thinking and hopefully it makes sense, but I\'m trying to explore what are my options before the process gets underway.

A HUGE THANK YOU!!!!
 
Answers to vey good, but complicated, questions

Questions: 1)
With the current law, is it fine if I apply for LC before the 6th year starts i.e. 02 July\'2002 and I can file for extensions after completing 6 years and get my GC (assuming LC doesn\'t clear till 02 July\'2003).

ANSWER:
No, it appears that now a person must have a pending I-140 to extend the H-1. Having an LC that has been pending for more than 365 days is not enough by itself.

OR

before my 6 years expire, my LC NEEDS to be cleared and I file for I-140, and the I-140 receipt should be ok to file for further extensions till I get my GC.

ANSWER:
Yes, you need the I-140 receipt.

2) During last few years I went on vacation (outside USA) and will do so this year, the total time spent outside will be 12 weeks (till 20 Sep\'2002). I heard that I can get an extension on my H1 for 12 weeks (time spent outside) after my 6 years. So, Do I consider that if I apply in EB2 (RIR) and it takes time beyond 01 July\'2002 to file for LC, my 6th year start will be considered as 20 Sep\' 2002 and even if the LC is cleared till July 2003 (WORST CASE SCENARIO) and I file for I-140 in August 2003, I can still file for extension and stay till I get my GC.

I\'ve done it successfully. The regulations state that only time in the US in H or L status counts toward the 8 year limit but INS has said that it only considers the period tolled when there is a "meaningful interruption" and that short vacations out of the US are not "meaningful interruptions". However, I feel that this has no basis in law and I have successfully reclaimed time spent outside the US on vacation. There are no guarantees though. All you could do is apply for it and see what happens.

3) how much time does it takes for LC clearance in EB2 (RIR)?

ANSWER:
It depends on what state is processing the LC.
OR

IF 4) I have to beat the deadline of 6th year Initial US Entry (02 July\'2002) to file for LC, what are my options?
Can I apply for EB2 Simply (and not go for RIR because RIR takes time to file). Doing this will probably help in getting at least the LC application through the process as I believe the date of filing/receipt by INS will count.
After applying for LC for EB2, can RIR be filed separately at a later date.

Yes, the date of filing is important but in most states you will not be able to get a traditional LC approved in less than a year and that will prevent your H-1 extension beyond six years.

Jim

James D. Mills
(formerly Jim M)
Attorney at Law
jdmills@justice.com
732-644-5702
 
THANK YOU

Jim,

Thanks a lot for your answers. It does make things pretty clear in my mind. Now, I know for sure that I should target EB2 (RIR), if I need to get LC cleared and file for I-140 (even though RIR takes time, I have to risk that much). Your knowledge on the latest regulations is tremendous and I really appreciate your candid opinion.

THANK YOU
 
HELP From JIM and Others.....

Hello Jim,

b I)
As a follow-up to your response to Q1,

*Questions: 1)
With the current law, is it fine if I apply for LC before the 6th year starts i.e. 02 July\'2002 and I can file for extensions after completing 6 years and get my GC (assuming LC doesn\'t clear till 02 July\'2003).
*ANSWER:
No, it appears that now a person must have a pending I-140 to extend the H-1. Having an LC that has been pending for more than 365 days is not enough by itself.
OR
*before my 6 years expire, my LC NEEDS to be cleared and I file for I-140, and the I-140 receipt should be ok to file for further extensions till I get my GC.
*ANSWER:
Yes, you need the I-140 receipt.

where can I find this information? Can this
b Law / Regulation
be found on INS Website or somewhere else.

Any pointers will be very helpful.

b II)
Also, Can this be A SHORTCUT? I want to explore this option.
b I have heard this has happened but not sure HOW?

Some people in my company had their GC started and left in the middle of it. I\'m not sure whether they were in LC or any other stage. Will try to find from HR.

If a employee left after LC approval, can this be used for another employee thereby reducing the GC time i.e. LC is already approved and apply it to another employee with similar job function. Is the LC for a particular job, or a particular person?

b OR

If a employee left during LC approval, can that LC be used for another employee once it\'s approved or is it stopped in-between when the 1st employee left the company.

Once again, A BIG THANK YOU!!!!

Sablok
 
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