One-Year Incremental Extensions on H1Bs
srkotturu said:
One of my colleagues, had similar situation. Before leaving to India, he applied for extention and he visited India. As per him, the officer at port of entry asked only one question, stating that Do you know, your visa will be expired within 4 months? He replied that, he already applied for extention.
Hope this will help.
SRK
www.murthy.com
1. PERM Implications : One-Year Incremental Extensions on H1Bs
At The Law Office of Sheela Murthy, P.C. we are spending countless hours
analyzing PERM. We are looking into how PERM may operate and its implications
for our clients, for MurthyDotCom readers, and MurthyBulletin subscribers. For
ease of reading, we will be addressing issues under PERM through a series of
articles on various topics.
Annual H1B Extensions under Pre-PERM
PERM will not only affect the green card process itself, but will also change
how those seeking one-year incremental extensions of H1Bs beyond the normal
six-year limit should plan for filing the labor certification. Eligibility for
these extensions requires the filing of an employment-based green card case at
least 365 days prior to the H1B extension request to take advantage of the
annual incremental extensions beyond the six years. Therefore, advance planning
is needed.
At present, if a position is considered to be in a shortage occupation, a
company may choose to file a labor certification through regular processing or
through a reduction in recruitment. Reduction-in-recruitment (RIR) cases
generally take longer to file because recruitment (advertising) results must be
obtained prior to filing. Therefore, in order to complete the required
advertising before filing, work on a reduction-in-recruitment case must start
three to six months prior to the desired filing date. If a case needs to be
filed in time for the beneficiary to qualify for an H1B extension beyond the
six-year limit, an employer needs to take action three to six months before the
beginning of the employee's fifth year of H1B status. If the employer chooses to
file under the regular labor certification process, however, the regular labor
certification could, in most cases, be started very shortly before the beginning
of the fifth year of H1B status. Although it is preferable not to rush to
prepare any case, such cases could be prepared in a matter of days and certainly
in a few weeks, if needed. The reason for this ability to quickly file such
cases is that recruitment does not take place in regular labor certification
cases until after the labor certification is filed and the State Workforce
Agency (SWA) or Backlog Elimination Center (BEC) initiates the recruitment.
The priority date is also currently established on the date that the labor
certification is filed with the SWA. The final prevailing wage determination
that is made by the SWA is done after the priority date has already been
established, and there is no required prevailing wage determination by the SWA
prior to receiving the priority date for most labor applications. Therefore, an
SWA prevailing wage determination has not usually delayed a labor certification
filing. All of these factors allowing for a fast filing are eliminated under
PERM. Thus, more advance planning is required, particularly for persons
approaching the five-year point in their H1B stays.
Annual H1B Extensions under PERM
PERM does not provide the opportunity to file a case before recruitment is
complete. This means that the employer will need to initiate and complete its
recruitment in advance, in order to be able to file the PERM case before the
start of the employee's fifth year on H1B status. Further, the employer must
obtain a prevailing wage determination from the SWA before the case is filed.
This can delay the PERM filing, depending upon how long it takes for the SWA to
provide the prevailing wage determination. For these reasons, an employer
planning to start a PERM case for an H1B employee should try to do so as early
in the employee's fourth year of H1B status as possible, if not earlier.
Adequate time must exist for obtaining a prevailing wage determination and
completing recruitment efforts well before the start of the H1B fifth year to
take advantage of annual H1B incremental extensions beyond the sixth year.
Will PERM Eliminate the Need for H1B Extensions?
PERM is expected to be much faster than the current labor certification system.
There is, however, no guaranteed processing time. Moreover, any new system is
subject to technical problems and glitches. In addition, as regular MurthyDotCom
and MurthyBulletin readers know, the EB3 priority dates have retrogressed. This
means that persons from India, mainland China, and the Philippines will likely
be unable to immediately file their I-485s even if their labor certifications
are approved. These people will need to extend their H1Bs until they can file
their I-485s or complete consular processing cases for immigrant visas. If an
employee chooses consular processing instead of the I-485, but intends to stay
in the U.S. until called for the consular processing interview abroad, s/he will
then need to maintain H1B status. Further, if PERM processing and USCIS
processing are much faster, the demand for immigrant visa numbers for
employment-based cases will increase. This can cause the EB3 numbers to
retrogress even further and potentially could cause a retrogression for EB2s.
Therefore, it is necessary to plan for H1B extensions beyond the six years in
order to maintain H1B status in light of retrogression issues. One-year
incremental H1B extensions most likely will continue to be a valuable commodity
for employers and their H1B employees.
To summarize, it is likely PERM will not impact the need for H1B extensions,
especially if the priority dates have retrogressed. On the other hand, if the
priority dates are current, the advantage of being able to concurrently file the
I-140 and the I-485 with the EAD and AP will prove useful with PERM for certain
employment-based applicants.
Copyright 2005, The Law Office of Sheela Murthy, P.C. All Rights Reserved
we also worried about the layoff, bad economy because of war, finance.....