Reaching 6 years H1 Cap

S

sunny2002

Registered Users (C)
Hi,
My 6 years H1 cap ends in July 2003.
I have applied for Labor in Jan 2002, but in CA labor
is taking for ever.... if i do not complete my labor before
July 2003 what are the repurcussions...

Gurus, Please advise..

thanks in advance..
 
If you reach your 6 year limit and cannot get an I-140 pending you will have 2 choices;

1. Change to another status (be carefuls, some visas are not dual intent and therefore an intention to immigrate will prevent a change to this status).

2. Leave the US.
 
Jim. Thanks for the info.

But as per the document i downloaded from ins website says the following:

SECTION 106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.
· Allows H-1B nonimmigrants with pending I-140s to extend their status beyond the six-year limit if 365 days or more have passed since the original filing date of their labor certification applications or their I-140 filing date . The extensions shall be granted in one-year increments until a final decision is reached on their permanent residence

So can i get 7th year extension (labor still pending), since labor was applied 365 days before the completion of 6 years?

thanks
 
"Allows H-1B nonimmigrants with pending I-140s" ...means you need to have I-140 filed to apply for 6th year H1 extension.
 
So, how do you get your I-140 pending if LC is still pending? I mean, how can you have I-140 started if LC has not clered yet?
 
Ok! ... Basically INS does not want somebody who got their labor cleared in 3 months and file for I 140 and file for an extension. (but with cuncurrent 485 filing i guess you can get away with it now)

You should have started your labor processing atleast 365 days before to apply for extension.

even if you got LC in 6 months and have been in the I 140 stage the last 6 months ... you can file for extension as your labor was filed 365 days before.... Hope this explains.
 
Ok. Got it. Now 3 really dumm quesitons:

1. Can you file for I-140 without LC (on the basis that LC will be provided later?) and this way get it 'pending'.

2. Can you leave US and still remain the company emploee? Working from 'home' untill LC clears?

3. What are the other dual intent visa types you can try to switch to? Something in L range?
 
If you are going to quote the INS website, you need to quote it in context.

A14 on the INS website (I assume this is where you got your quote) states:

"Finally, AC21 gives extensions of H-1B status in one-year increments to H-1B aliens who have an employment-based immigrant visa petition or application for adjustment of status pending if It has been more than 365 days since the visa petition or the labor certification application has been filed. Note that the adjustment application, labor certification, or visa petition need
not necessarily have been pending for a year to obtain this benefit. The only requirement is that 365 days have passed since filing of the labor certification or immigrant visa petition."

This states that you need to have an employment-based immigrant petition (an I-140) or application for adjustment of status (I-485) pending. I do not understand why people insist that the law is ambiguous. It seems pretty clear to me as soon as you realize that a LC is NOT an employment-based immigrant visa petition (look at the top of form I-140).
 
Pending I-140 without a LC

EB-1 and NIW filings do not require a Labor Certification and therefore the priority date is set when the I-140 is filed.
 
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Thanks Jim.
This removes any doubts regarding extending beyond 6 years
(somehow different people had been giving different opinions about what was valid. Your answers have made things very clear)

Also, During the past 5 years, I had stayed in India for 6 months on a project and spent 2 vacations one for 4 weeks and the other
for 6 weeks.

Can I use use
a. The 6 months project time
b. The 10 weeks vacation time

for extending my stay beyond 6 years limit....

thanks in advance
 
good news

Some words of advise, but first the DISCLIMER:

We take no responsibility for accuracy of information provided. Please use at your own risk.

I see Jim here wants to make it clear: Your deal is off....bad luck.
Now, I'm not an attorney. I'm just another folk reading the law, but listen to that:
If your LC petition has been filed more then 1y. ago all you need to do is to file for I-140 with no LC. I do not know how long it will take INS decline your I-140 petition (make no mistake - it WILL be declined) but in a mean time you will get your 1y. H1-B extension.

Hope I made your day better.
ThePopper :cool:
 
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Re: good news

Does this really work? It would be great if it is!

Originally posted by ThePopper@home
Some words of advise, but first the DISCLIMER:

We take no responsibility for accuracy of information provided. Please use at your own risk.

I see Jim here wants to make it clear: Your deal is off....bad luck.
Now, I'm not an attorney. I'm just another folk reading the law, but listen to that:
If your LC petition has been filed more then 1y. ago all you need to do is to file for I-140 with no LC. I do not know how long it will take INS decline your I-140 petition (make no mistake - it WILL be declined) but in a mean time you will get your 1y. H1-B extension.

Hope I made your day better.
ThePopper :cool:
Click to expand...
 
Re: good news

Well unless somebody can give reasonable answer to "Why not?" this should work. For example there is determination of bogus(frivolous in INS terms) H1-B petition, but I couldn't find such a thing for I-140... ;)

ThePopper :cool:
 
I've asked my lawer about this scenario, he said he has never done or heard anybody doing so, but he would definatelly be glad to see how this goes. Another words folks, keep in mind that 7-th year extentions is a new regulation and US legislative system is often based precendent based, rather than strict formulation.
 
Hi,
I got the same legal advice as Popper says. You can apply I-140 in NIW category and get your H1B extension before 1-140 gets rejected.
 
Q for Jim Or for Real Expert

Hello Jim - My H1 6yr quota is about to expire but I still have 16
more months on my I-94. I got this new petition(new I-94) when my compnay filed for Visa Amendment b'cos of change of work address.
I applied my GC 365 days before, i.e after 4.5 yrs of my H1 and
its in Labor.
Can I stay back as I still have 16 more months on I-94? I heard only I-94 is your legal status. Please let me know your opinion.

Thanks,

InderPaul
 
I have the same case too. But autorny said ... it is for us to intimate INS .... she said she would not recommand me staying over 6 years ..even if my I 94 is still valid. Talk to your autorney.
 
Hello atrajan - I already talked to immigration lawyer. He says yes to me ! So I don't know what to do ???

InderPaul
 
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