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Atlanta PERM Discussion Forum
H1B Expiry - Perm Pending |
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Hi All,
I have my 6th year of H1b ending on 09/03/2009. Perm applied with Priority date 12/30/2008. I realize to be eligible for 7th year H1B extension; I will need PERM + I-140 approval.
I am trying to evaluate to see which of these options are advantageous: To leave USA by mid July, keeping 6 weeks to be recaptured, to gain some time for my pending PERM application or wait till Sept 3rd exhaust the H1b. I have availed H1B recapture from 06/13/2009 - 09/03/2009.
Please let me know if you have any suggestions.
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I realize to be eligible for 7th year H1B extension; I will need PERM + I-140 approval.
to shans:
The above statement is not fully true, you just need to have priority date of 1 year, that is enough. So in your case you would need a priority date 09/03/2008 but you have 12/30/2008 So you need to recapture 4 months and some extra days to be safe.
* Collect all the information from the days you were out of the country. Those days can be recovered. Proof it with plane tickets or other information (passport stamps etc...)
* Leave the country as quickly as you can and come back a week before 09/03/2009
If all the above days added together doesn't give you 4 months and some extra days, you have to forget about the H-1b and I would recommend to go for an O1 visa.
good luck,
I'm not a lawyer so got this from my own experience.. |
to case20071015:
Thanks for your input case20071015.
I realize my priority date needs to 365 days old to be able to claim for the 7th year extension. I am short of 4 months to make it to 365 days. I can manage to be out of USA for only 6 weeks and not for 4 months.
My employer wont sponsor me for a O1 visa so thats not a workabkle option for me.
Is it possible to file for Premium I-140 when out of the country? and beyond Sept 3rd i.e beyond H1B expiry. I am not very sure i read some where that the eligibiity for Premium I-140 is +/- 60 days of H1B Expiry, is that true?
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to shans:
Q: Is it possible to file for Premium I-140 when out of the country?
Ans: Yes, it is possible to file for Premium I-140 when out of the country.
Q: and beyond Sept 3rd i.e beyond H1B expiry.
Ans: Not sure about this
Q: I am not very sure i read some where that the eligibiity for Premium I-140 is +/- 60 days of H1B Expiry, is that true?
Ans: Yes, you can apply for Premium I-140 if ur H1B is expiring in less than 60 days.
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to gctracker27:
you can find the answers here.
http://www.immigration.com/greencard/101/i-140-...
Am I Eligible for I-140 Premium Processing?
USCIS is currently allowing I-140 premium processing in limited circumstances. I-140 premium processing is only available to an alien beneficiary who as of the date of filing the Form I-907: is the beneficiary of a form I-140 petition filed in a preference category that has been designated for premium processing service; has reached the 6th year statutory limitation of his or her H-1B stay, or will reach the end of his or her 6th year of H-1B stay within 60 days of filing; is only eligible for a further H-1B extension upon approval of his or her Form I-140 petition as prescribed by American Competitiveness in the Twenty-first Century Act (AC21) provisions 104(c)1; and is ineligible to extend his or her H-1B status under AC21 §106(a)2.
lemme know if that helps. i am in a similar situation where my h-1b expires on august 13th. my lawyer had told me if i don't get my labor by then, he would change me to B-2 and then change me back to H-1B after i get the labor approved + I-140 approved or wait it out for one year and then get the one year H-1B extension. i filed my case 01/13/2009.
thanks,
treost
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to gctracker27:
Thanks gctracker27.
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has reached the 6th year statutory limitation of his or her H-1B stay, or will reach the end of his or her 6th year of H-1B stay within 60 days of filing;
to treost:
Thanks treost, this information is helpful to me. Though i am still not very clear about
'has reached the 6th year statutory limitation '
Does this mean that i am eligible to file for premium processing with PERM Approved and H1B expired?
Thanks |
to shans:
hey!
this article is about restarting Premium processing for I-140 cases . never knew they stopped doing that.
http://www.aila.org/content/default.aspx?...
I think "statutory limitation" means that you have exhausted your 6th year on H-1B including any recapture days etc. In other words, you can apply for an H-1B 3-year extension with an expired H-1B plus an approved PERM and an approved I-140. You should check with your lawyer on that anyhow. I'll have to do that myself :-)
thanks,
treost
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to treost:
Wow this is good peice of information. Thanks for Sharing and wish you luck with your application.
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to shans:
thanks! likewise!
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to shans:
Leave the country 5 days before your visa expires, and then come back after 12/30, when you are eligible for and extension of the 5 days left on your old visa that you are recapturing + 1Year H1B extension. I am in the same position. My lawyer says is perfectly legal and she has done it many times before. Of course you need your Job to still be available for you in Dec 30th.
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to treost:
Hi Treost,
I looked at your post and it is very helpful. Just want to know that your lawyer told you to change to B-2 if your perm has not been approved on time, so you can wait for perm in US until it is approved and then change back to H-1. Does it mean after Perm approved and file I140 and extend H-1b for 3 years? How to change B-2 to H-1b? My H-1b will be expired in Oct. this year for 6 YR and I filed mine perm in Dec. 2008. Still waiting and try to figure out what I need to do. If your attorney said is true, I want to transfer to B-2 and wait for approval here.
Thanks.
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to emily1022:
Hi Emily,
My lawyer told me that he would change my status to B-2 around August 13th until PERM/I-140 approved. Then he would file for the 3-year extension and change the status back to H-1B. In case my case gets audited or 365 days go by without a decision, then he would go for 1-year extension. Changing H-1B to B-2 back to H-1B can be done. Here is a link to prove that it's possible.
Link: http://tinyurl.com/nt7ax9
What you see below is the part that applies to folks like us. The entire article can be found at: http://tinyurl.com/ljwtx9
Applicability to Alien Whose Sixth Year in H-1B Status Expired Prior to Conclusion of the One Year
There is a very good argument for the proposition that such an alien should be eligible to obtain approval of a seventh-year H-1B petition and apply for a new H-1B visa at a U.S. Consulate. Section 11030A of the Twenty-First Century Department of Justice Appropriations Authorization Act (Pub.L. No. 107-273, 116 Stat. 1758) is divided into two sections, each of which should be read independently. Subsection (a)'is entitled 'Exemption from Limitation' and states clearly that the six-year limit does not apply at all if 365 days or more have elapsed since the filing of the application or petition. Subsection (b) entitled 'Extension of H-1B Worker Status' allows for the extension of H-1B status for an alien who qualifies under Section (a).
The alien whose status expired before the one year is exempt from the six-year limit under subsection (a)'once the one year period is reached. Since the alien is exempt from the six-year limitation under subsection (a), there should be nothing to preclude the alien from applying for a new H-1B visa, even if he is ineligible to extend his status under subsection (b).
Further support for this proposition can be found in the language of subsection (a), which states that it applies to 'any nonimmigrant alien previously issued a visa or otherwise provided'H-1B status'. This is the same language as appears in INA '214(m) regarding portability. Even in the absence of regulations, it is rather well settled that this same language enables an alien who was granted H-1B status to be portable even if he is now out of status and therefore not extendable. Likewise, the out of status alien should get the benefit of being exempt from the six-year limit, even if he is not extendable.
There is even a good argument to be made that the alien in this example is eligible for an extension under subsection (b) even if he is out of status by the time the one-year pendency of the application or petition creates the eligibility for extension of status. Again, a reading of the exact language of subsection (b) is critical. Unlike, e.g., Section 245(a) of the Immigration and Nationality Act, which states that the Attorney General 'may' adjust status of a qualifying alien, subsection (b) states that the Attorney General 'shall' extend the status of an alien who qualifies for an exemption under subsection (a). Since we have already seen that the alien in our example qualifies for the exemption under subsection (a), it is arguable that the language of subsection (b) equally entitles the alien to extension of status in the United States even if the alien does not meet the requirement of maintenance of status that would otherwise apply.
The sole USCIS Memorandum on this subject does not address either argument. The memorandum from William R. Yates dated April 24, 2003 (HQBCIS 70/6.2.8-P) ('Yates Memo') (posted on AILA Infonet at Doc. No. 030501.45 (May 1, 2003)), only deals with subsection (b) and only addresses applications to extend status in the US. It makes no reference to the availability or unavailability of obtaining a seventh-year H-1B visa at a US Consulate.
What if the labor certification application or immigrant petition has been pending for less than 365 days at the time of the filing of the extension petition but more than 365 days at the time of the adjudication? USCIS has not taken a consistent position. The Yates Memo apparently states that the 365 day requirement must be met at the time of filing. USCIS Service Center Operations initially advised AILA that the extension could be approved as long as the one-year period is met at the time of adjudication, but subsequently reversed its position.
The link to actual USCIS PDF file with the above paragraphs is at: http://tinyurl.com/mcxwhr
Open the PDF file and do a search for SEC. 11030A. EXTENSION OF H–1B STATUS FOR ALIENS WITH LENGTHY
ADJUDICATIONS.
According to this, people with expired H-1Bs (6th year including recapture days) can in fact get the 1-year or 3-year H-1B extensions. Anyhow, please double check with your lawyer as well. I will do the same.
Thanks,
treost
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to treost:
Hi treost,
Did you get additional information about "people with expired H1b can get extensions"? I've tried to talk to two lawyers already and they both told me that you should be in H1b with approved labor cert and approved I 140 or your labor cert or I 140 is pending for more than 365 days.
Please let me know if you get additional info because I have reached already my 6 years and I don't know what to do next to regain H1b.
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