When exactly 6 years is up? And Labor question

S

suhasini7

Registered Users (C)
Folks,

Please help me understand. Came to US on March 1st 1999. Have spent 45 days outside US.

So for H1B 7th year extension, should the company file for labor before March 1st 2005 or April 15th 2005? (my current visa expires in August so it has gone for Extension - and lawyer has applied till April 2005).

In short, does the requirement of labor cert pending for 365 days start from 1 year less from 6th year of date of your entry (March 1st) OR from one year less from your actual 6th year expiration date (April 15th).

Sorry, I could not put this question in a clearer way!
Thanks!
 
Your Labor must be applied before March 1st 2005. Recapturing vacation time is INVALID and Illegal!!!!
 
If I understand correctly, you want to be eligible for 7th year extension for your H1 visa. The 365 day requiremetn implies that you have applied for your labor-cert before you complete 5 years on your H1. Else obviously, you will run out of H1 time before your labor-cert completes 365 days.

Since you have spend some time outside the US, you can try to recapture those days on your H1. You/your lawyer cannot just add these on your own - an application has to be made to recapture vacation time on your h1. You lawyers would know about this. Ask them.



Originally posted by suhasini7
Folks,

Please help me understand. Came to US on March 1st 1999. Have spent 45 days outside US.

So for H1B 7th year extension, should the company file for labor before March 1st 2005 or April 15th 2005? (my current visa expires in August so it has gone for Extension - and lawyer has applied till April 2005).

In short, does the requirement of labor cert pending for 365 days start from 1 year less from 6th year of date of your entry (March 1st) OR from one year less from your actual 6th year expiration date (April 15th).

Sorry, I could not put this question in a clearer way!
Thanks!
Click to expand...
 
Originally posted by suhasini7
Folks,

Please help me understand. Came to US on March 1st 1999. Have spent 45 days outside US.

So for H1B 7th year extension, should the company file for labor before March 1st 2005 or April 15th 2005? (my current visa expires in August so it has gone for Extension - and lawyer has applied till April 2005).

In short, does the requirement of labor cert pending for 365 days start from 1 year less from 6th year of date of your entry (March 1st) OR from one year less from your actual 6th year expiration date (April 15th).

Sorry, I could not put this question in a clearer way!
Thanks!
Click to expand...
____________________________
Recapturing time on H1-B does not work either. I applied for a H1-B and thought I could recapture the 5 months I was out of the country and between jobs - did NOT work. So, I would not count on it.
By the time your 7th year extension comes up, your LC/I-140 should have been pending for atleast 365 days. Simple?
 
Recapturing any time spent outside the US is now possible under a recent decision of Nair v. Coultice. It is very possible and this is what we, professionals, do all the time on behalf of our clients who are eligible. Often this is a very strategic move to enable them to take advantage of the 7th year extension due to the timing of the filing of the labor certification application. What is necessary for this is the accurate documentation of all the days spent physically outside the US and for this you need to have all the passport stamps of departure and arrival dates and this must be brought to the attention of USCIS in a systematic and persuasive manner.
 
Originally posted by samnjny
Your Labor must be applied before March 1st 2005. Recapturing vacation time is INVALID and Illegal!!!!
Click to expand...

Where did this bit of wisdom come from? Where is a law that states time outside the US cannot be recaptured? I agree with Lana's cite to Nair v. Coultice, 162 F.Supp.2d 1209 (S.D.Cal.,2001).

The Nair case is pretty clear. The issue in Nair was whether, as a matter of law, 97 days spent outside of the United States should count toward the six-year limit on plaintiff's authorized admission.

In holding that the 97 days that Nair spent out of the US should not count toward the six year limit for H-1B status, the Court stated "that in light of (1) the statute's silence on the issue of how the six-year period set forth in 8 U.S.C. § 1184(g)(4) shall be determined; (2) the language of 8 C.F.R. § 214.2(a)(h)(13)(iii), which provides that the six-year period is based on time "spent ... in the United States"; (3) defendants' prior position on this issue; and (4) defendants' failure to explain the departure from the INS' previous practice, defendants unlawfully included the 97 days defendant Sandeep Nair was outside of the United States when calculating the six-year period in this case."

The whole idea that time outside the US should count toward H-1B time began (to the best of my knowledge) with one letter from Jacquelyn Bednarz, an attorney for INS. This letter has NO precedential value as a matter of law. Here we have an opinion by a federal court stating that time can be reclaimed.

Doesn't sound "INVALID and Illegal" to me. I've done it in the past and I will continue to request extensions for time spent outside the US in appropriate cases as long as there is a valid argument to do so.
 
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