USCIS WAS WRONG! Cannot File Prior to Eligibility

J

Jim Mills

Registered Users (C)
USCIS Service Center Operations ("SCOPS") office has advised AILA that USCIS was incorrect when it stated that it was possible to file for a 7th year H-1B extension prior to the 365 day aniversary of the LC filing. USCIS now advises that a request for an H-1B extension beyond the sixth year, under the 2002 DOJ Authorization legislation that amended AC21, must be filed no less than 365 days after the date that the labor certification application was filed. If it is filed before the 365 days have run, it is subject to denial, even if the extension would not take effect until after the 365 days.

Huge reversal and may be catastrophic for some of you guys. This was posted on the members only section of AILA's website today. It should be on some of the other sites by Monday.
 
Jim,

I fall into this category. I filed for 7th year extension, before completing 1 year from LC filing date (in May'04). Is this change applicable for the cases filed already ?

Regards
-Niranjan
 
Notice Date or Receipt date

HI Jim
What do INS consider as the Start Date. Is it Received Date or Notice Date.
My 365 days over on July 25, extension was file on july 27th and notice date is Aug 1. My 6 Yrs expire July 29.. Am i fine with this??
 
It is beyond my understanding! The previous ruling made sense, as the extension would only start after the 1 year of labor (applied for or approved and waiting in line for 140 or whatever line!!). Now it is reversed! I think they will flip again.

In my case, they raised an RFE as my premium processing request was about 10 days shy of 1 year but the extension application was months ahead of 1 year (as VSC was lagging behind for months for I-129 of applicants already in US).

My case was approved and I am praying they dont reverse that.
 
Hanuman55 said:
It is beyond my understanding! The previous ruling made sense, as the extension would only start after the 1 year of labor (applied for or approved and waiting in line for 140 or whatever line!!). Now it is reversed! I think they will flip again.

In my case, they raised an RFE as my premium processing request was about 10 days shy of 1 year but the extension application was months ahead of 1 year (as VSC was lagging behind for months for I-129 of applicants already in US).

My case was approved and I am praying they dont reverse that.
Click to expand...

Actually, as I previously posted in another thread when I heard about the first change, the way that it is now (and the way that it was done for years prior to the announcement a month or two ago, was consistent with ALL filing policies with USCIS, that is that a person must be eligible for a benefit at the time of filing, not at the time of approval. For example, a person who will earn their degree and graduate in December cannot file for an H-1B now with a January 1, 2005 start date. You must be eligible at the time of filing. If USCIS goes back and denies cases that were filed while the apparent new policy was in effect, I think they are setting themselves up for appeals and maybe even federal litigation over the issue.
 
Jim Mills said:
USCIS Service Center Operations ("SCOPS") office has advised AILA that USCIS was incorrect when it stated that it was possible to file for a 7th year H-1B extension prior to the 365 day aniversary of the LC filing. USCIS now advises that a request for an H-1B extension beyond the sixth year, under the 2002 DOJ Authorization legislation that amended AC21, must be filed no less than 365 days after the date that the labor certification application was filed. If it is filed before the 365 days have run, it is subject to denial, even if the extension would not take effect until after the 365 days.

Huge reversal and may be catastrophic for some of you guys. This was posted on the members only section of AILA's website today. It should be on some of the other sites by Monday.
Click to expand...
How CIS will be dealing with cases filed already and filed in line with the previous guide lines.Will they apply this for applications filed to be filed in future or..?
Any ideas?
 
H-1B 7th year extension denied

HEllo

H-1B 7th Year Extension

--------------------------------------------------------------------------------

Hello

One of my friend's H-1B 7th year extension got denied although 365 days had elapsed on his LC application. Reason for denial is he had applied for his H1-B before before the 365 days were up since the date was cutting too close. Please note the following:

LC Applied September 29th 2003
H-1B 6th year expiration September 30th 2004 (366 days elapsed)
I-94 Expiry September 30th 2004 (Just one day differece)
H-1B Filed August 29th 2004. (Beore 365 days were up)

Can anything be done in this case. Please advise

Thanks
Ricky
 
7th year extension - labor about to be approved

I am expecting my labor to be approved by Mid November. My 6 year on H1 expires in May 2005 which means I can only apply for extension not earlier than November.

1. If my labor is approved before I can am eligible to apply for extension, can I file extension. From what I read, Labor or 140 should be pending for more than a year. This is not true in my case as my labor will not be "Pending" and I have not filed 140.

2. If I file for extension few days before I get labor approval, will my extension go through? as labor wont be pending when Extension appn is taken up by INS.

3. Does INS "Punish" people who got the labor approval compared to one whose labor is pending?

YOUR REPLIES WOULD HELP TO RELIEVE MY TENSION AND ALLOW ME TO SLEEP AT NIGHT
 
you can apply for H1 ext beyond 6 yrs, if your labor is approved, but I140 is pending and you have completed 365 days from labor cert application date. If your labor gets approved in Nov, you can apply for I140/485 and then apply for H1 extension (if you choose to continue on H1, otherwise, you could use EAD).

need_your_help said:
I am expecting my labor to be approved by Mid November. My 6 year on H1 expires in May 2005 which means I can only apply for extension not earlier than November.

1. If my labor is approved before I can am eligible to apply for extension, can I file extension. From what I read, Labor or 140 should be pending for more than a year. This is not true in my case as my labor will not be "Pending" and I have not filed 140.

2. If I file for extension few days before I get labor approval, will my extension go through? as labor wont be pending when Extension appn is taken up by INS.

3. Does INS "Punish" people who got the labor approval compared to one whose labor is pending?

YOUR REPLIES WOULD HELP TO RELIEVE MY TENSION AND ALLOW ME TO SLEEP AT NIGHT
Click to expand...
 
You must log in or register to reply here.
Top