further update immigration-law, this calrifies further
StressTestInUSA said:
Hi Days_go_by..
According to the 2nd point can you please clarify from your understanding if one is eligible to file H1 right away and not wait for the new H1B quota.
Came to US in 2000 on H4, changed to H1 in Aug 2001 until Feb 2003, changed back to H4. The 6 yr limit on H status in all has been completed in 2005. Now to change back to H4 according to the latest Memo, do we need to wait for the new quota or can file for a H1 now...
Please post your thoughts..
01/02/2007: Strategies to Make Eligible for AC 21 H-1B Extension Beyond Six Year Limit
* Lately the USCIS leaders have liberalized substantially interpretation of the H-visa rules and laws in favor of the H-1B professionals, allowing the H-1B professionals to maintain the H-1B status beyond six year limit without jeopardizing their immigration journey. By now, people understand the rule of 104(c) of AC21 that allows H-1B extension in three year increments beyond six year limit inasmuch as one has the I-140 petition approved. People also know that the 106(a) of AC21 allows them to apply for H-1B extension beyond the six year limit in one-year increments inasmuch as the labor certification or peition was filed before the alien's H-1B six-year limit reaches within 365 days.
* There are however a number of individuals or situations that face a serious problem in meeting the timeline to be qualified for these provisions. For instance, there are a number of people whose labor certificaztion application was or is filed after reaching five years in H-1B six year limit. There are a number of people who either filed a labor certification waiver I-140 petition such as National Interest Waiver or labor certification approved I-140 petitions at the last minute and not qualified for either 104(c) or 106(a) relief. We want to provide here a laundry list of the options such people should consider and act on it as follows:
o Substitution Labor Certification at the stage of labor certification application: If the alien faces close to approval of a labor certification application for someone else and the employer is willing to substitute the beneficiary, he will take over the priority date and can be qualified for the 106(a) H-1B extension beyond six year limit, inasmuch as the labor certification has been pending more than 365 days.
o Substitution Labor Certification at the state of I-140 petition: The same rule will apply in that the substituting alien takes over the priority date. However, since the substitution must be approved by the USCIS, it practically requires the approval of I-140 petition based on the substitution labor certification application. Currently, premium processing of I-140 petition is available inasmuch as the employer can submit "original" approve labor certification. Accordingly, the people in this category must utilize 104(c) three-year increment extension route rather than one-year increment extension route.
o Devices to Delay the Reach of H-1B Six-year Limit: Assuming one has to rely on 106(a) route because the pending labor certification which has yet to be certified, one can consider one of the following devices:
+ Overseas Trip and Recapture of H-1B Time: Current any period of time spent outside of the U.S. can be recaptured. This will allow stretch-out or delay of reaching the six-year limit and making him/her qualified for 7th-year H-1B extension.
+ Change of status back and forth between H-1B and H-4 if both spouses are H-1B professionals: The Aytes memorandum decoupled H-4 from L-1B and any period in H-4 status will not count for H-1B six-year limit. Again this will delay reach of the H-1B six-year limit. Since they have already taken out H-1B cap number, they will not be subject to the H-1B annual cap and will be able to change back to H-1B anytime, even during the period of running out of annual H-1B cap numbers.
+ Change of status back and forth between H-1B and other nonimmigrant status: Aytes memorandum made it clear that one does not have to maintain H-1B status to apply for 106(a) or 104(c) H-1B extension beyond six years. Again this will delay the reach of H-1B six-year limit and making them eligible for 106(a) or 104(c) extension.
o Premium Processing I-140 Petition for Recent PERM Approvals or NIW or EB-1 Professionals: Currently premium processing is available for EB-2 other than NIW and EB-1C Multinational Corporate Executive Petitions. For the PERM labor certification approval professionals, if I-140 is approved via Premium Processing in 15 days, they will be able to file for 104(c) H-1B extension if the visa number is retrogressed for them. If the visa number is not retrogressed, they should utilize the H-1B delay devices which are described above. For the NIW or EB-1 professionals, unless the I-140 petition has been pending longer than 365 days, they will not be eligible for 106(a) extension. Again, should the H-1B six-year limit approach before the I-140 approval, they should take advantage of the delay devices which are described above. If the I-140 petition is denied, they are eligible for 106(a) one-year increment extension pending the decision of the appeal. Accordingly, those who face the I-140 denial close to their H-1B six-year limit, they should not seek a motion to reconsider or motion to reopen as MTRs do not give such benefits. They should immediately file an appeal of denial of I-140 petition. Currently, the processing time of I-140 appeal to AAO longer than a year. This approach will also allow the alien to seek a "second chance" before the AAO reaches a decision. There are a number of aliens who experience a predicament because of the delay in I-140 petition, which fails to meet neither 104(c) opportunity or 106(a) opportunity. Again these people should seriously consider the delay devices which are described above.
o
H-1B "Remainder" Device: This rule allow the H-1B aliens who have not exhausted the six-year limit but were absent from the U.S. for longer than one-year. He or she can just apply for the H-1B extension for the remainder period for the H-1B six-year limit without being subject to the H-1B annual cap numbers, or opt to take filing a new H-1B six-year petition if there is no H-1B annual cap number problem.
* There may be some other options to deal with the H-1B professionals who face running out of the H-1B six-year limit. They should seek legal counsel for assistance.
In Process.