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Updated 05/17/2002: 7th Year H-1B Extension Under AC 21 and Change of Employer -- from Immigration-law.com
AC 21 Act involves a number of areas that need interpretation which can affect a large number of H-1B professionals and employment-based immigration applicants. The enactment of the AC 21 regulation that should give a guidance to the employers and the aliens has been long overdue, but we are glad that the INS may finally release the regulation within this year.
Pending the release of this regulation, people heavily rely on the reponsible officer\'s interpretation and view on various AC 21 issues. Even though such opinion does not have a legally binding force, people usually follow such opinion, including the INS adjudicators.
A couple of days back, we discussed the view of the responsible officer on the usability of the "dormant" H-1B petition (either former H-1B employer or multiple H-1B employers for the same alien). Today, we would like to focus on the issue whether 7th year H-1B extension is available for those who became "qualified" for 7th year H-1B extension by having obtained the labor certification application and filed I-140 petition, which took more than 365 days, and started a new labor certification application with a new employer but not quite reached 365 days.
The officer expressed an interesting view in his response to an attorney\'s inquiry that once one got qualified for the 7th extension, the alien will carry that qualification with another employer. We call this "alien-based" benefit. This concept was initially adopted in the interpretation of 245(i) provision such that the INS views that once the alien is qualified for 245(i) benefit, the alien carries with him/her the benefit of 245(i) inasmuch as the underlying labor certification application or immigrant petition was not frivolous, no matter whether the labor certification is later denied or withdrawn. Even though there may be some difference when it comes to the details, apparently the officer gives a very liberal view on 7th year H-1B extension issue adopting a similar concept of "alien-based" benefits.
People who are in a similar situation should consult with their legal counsel to learn whether they will be eligible for the 7th year extension of H-1B extension. You should not dare to attemp to apply this information as the law or legal advice. Very important.
Updated 05/17/2002: 7th Year H-1B Extension Under AC 21 and Change of Employer -- from Immigration-law.com
AC 21 Act involves a number of areas that need interpretation which can affect a large number of H-1B professionals and employment-based immigration applicants. The enactment of the AC 21 regulation that should give a guidance to the employers and the aliens has been long overdue, but we are glad that the INS may finally release the regulation within this year.
Pending the release of this regulation, people heavily rely on the reponsible officer\'s interpretation and view on various AC 21 issues. Even though such opinion does not have a legally binding force, people usually follow such opinion, including the INS adjudicators.
A couple of days back, we discussed the view of the responsible officer on the usability of the "dormant" H-1B petition (either former H-1B employer or multiple H-1B employers for the same alien). Today, we would like to focus on the issue whether 7th year H-1B extension is available for those who became "qualified" for 7th year H-1B extension by having obtained the labor certification application and filed I-140 petition, which took more than 365 days, and started a new labor certification application with a new employer but not quite reached 365 days.
The officer expressed an interesting view in his response to an attorney\'s inquiry that once one got qualified for the 7th extension, the alien will carry that qualification with another employer. We call this "alien-based" benefit. This concept was initially adopted in the interpretation of 245(i) provision such that the INS views that once the alien is qualified for 245(i) benefit, the alien carries with him/her the benefit of 245(i) inasmuch as the underlying labor certification application or immigrant petition was not frivolous, no matter whether the labor certification is later denied or withdrawn. Even though there may be some difference when it comes to the details, apparently the officer gives a very liberal view on 7th year H-1B extension issue adopting a similar concept of "alien-based" benefits.
People who are in a similar situation should consult with their legal counsel to learn whether they will be eligible for the 7th year extension of H-1B extension. You should not dare to attemp to apply this information as the law or legal advice. Very important.