H1B Extension Que

[Osama Bin Gandhi]

Hello DB vasiyon,

Naa Labor apply chesi 4 months iyindi...inka approve avvaledhu..naadi ee september lo h1b 6 years aipothundi..naaku out of country period 11 months undhi (221g)...nenu danni recpature cheskochha(without being PERM approved)

[perugu_vada]

General ga after 6 yrs in h1, to be eligible for further h1 extn, labour filing must be done before u r into ur 6th yr emo ga ?

[Yuvatha]

Hello DB vasiyon,

Naa Labor apply chesi 4 months iyindi...inka approve avvaledhu..naadi ee september lo h1b 6 years aipothundi..naaku out of country period 11 months undhi (221g)...nenu danni recpature cheskochha(without being PERM approved)

Yeah you can recapture that 11mo period. You can file for extension right away. All the best.

[MeetFriendz]

if labor is already filed then you are good to get 1 year extension. So may be 11 months yevochu initally.

[BillMarkSteve]

Like pina perugu vada cheppinattu...

Before 365 days of your 6 years h1b span expiry...nuvvu labor file chesthey u r good to go...

Check with ur employer and attorney....

[perugu_vada]

Like pina perugu vada cheppinattu...

Before 365 days of your 6 years h1b span expiry...nuvvu labor file chesthey u r good to go...

Check with ur employer and attorney....

365 days after labor file chesthe enti situation ? Can he recapture those 11 months out of US period ?

[Yuvatha]

365 days after labor file chesthe enti situation ? Can he recapture those 11 months out of US period ?

6yrs period capture cheyataniki labor apply chesi undali ani em ledu as far as I know...every time we file extension manam out of country aina duration mention chestu extension ki file chestamu..so we are good to capture unused h1b over 6yrs withour labor. in case labor approve ayi unte...after 6th year you can apply for 1yr extension stating you are awaiting for GC application status.

[perugu_vada]

6yrs period capture cheyataniki labor apply chesi undali ani em ledu as far as I know...every time we file extension manam out of country aina duration mention chestu extension ki file chestamu..so we are good to capture unused h1b over 6yrs withour labor. in case labor approve ayi unte...after 6th year you can apply for 1yr extension stating you are awaiting for GC application status.

oh ok i get it
Wat if we have not filed for labour before 365 days of 6th yr ? Chances of further extensions, any possibilities ?

[Silent_Boy]

oh ok i get it
Wat if we have not filed for labour before 365 days of 6th yr ? Chances of further extensions, any possibilities ?

 

I guess we need to leave the country and come back after 140 and new H1b Extension approved

 

 not filed for labour before 365 days of 6th yr(after recapturing all days )

[aceruser]

only nv usa lo vuna period ne count lo chskovali 6 yrs ki not according to i-797 dates.

me emp new extension lca 11 months ki peti he can file extension by keeping explan doc explaining your entry and exit to usa. lawyer chuskuntadu le e doc nv details isthe

[Yuvatha]

oh ok i get it
Wat if we have not filed for labour before 365 days of 6th yr ? Chances of further extensions, any possibilities ?

i dont  know about this. ltt for experts

[Silent_Boy]

i dont  know about this. ltt for experts

 

 

Filing Labor Certifications During Sixth Year of H1B

[Editorial Note: At MurthyDotCom we have published articles on immigration issues since 1994. Over time, earlier articles become outdated due to changes in the law, regulations, or the political or economic climate. This article remains relevant, and has been updated for the benefit of our readers.]

We at the Murthy Law Firm are often asked whether it is too late for an employer to file a PERM labor certification (PERM or LC). The question generally comes from individuals who are approaching or are already in the sixth year of H1B status. In many instances, the economic downturn has delayed the ability to file LCs. It is often assumed that it is impossible to file an LC if one is in the sixth year of H1B. This is not correct. The LC can be filed at any time. The questions surround possible options for one nearing the end of six years in H1B status in the United States. MurthyDotCom and MurthyBulletin readers dealing with this situation may find this discussion particularly helpful.

Rule for H1B Extensions Beyond Six Years

The standard allowable time in the United States in H1B status is six years. In order for one to be eligible to extend H1B status beyond six years, it is necessary to qualify under either of two possible rules. These rules are part of the American Competitiveness in the Twenty First Century Act (AC21). The requirements are that (a) the foreign national must be the beneficiary of an LC filing made 365 days prior (or I-140 in those cases that do not need the LC filing); or (b) the LC and I-140 must be approved, with no visa number (based upon the priority date) available.

LC or I-140 Filed Before End of Five Years in H1B Status

The first rule, known as the 365-day rule, is predictable. Generally, it is recommended that the employer file the LC application at least 365 days before the end of the six years of H1B status. This is still sound advice. It should not be construed to mean, however, that all is lost if the LC cannot be filed 365 days before the end of the sixth year in H1B status.

LCs May Be Filed Anytime

As explained, the 365-day rule relates to the ability to extend the H1B status. It does not place a limit on the ability to obtain approval of an LC. LC decisions do not depend upon the immigration status of the foreign national beneficiary. The outcome of an LC filing is not connected to the time the beneficiary has remaining in H1B status. The permanent residency, or green card, is related to a future job offer concept, unlike the ability to obtain H1B extensions to live and work legally in the United States.

Options if LC Filed in Sixth Year

If an LC is filed once the sixth year of H1B status has begun, there are a number of possible options and outcomes. Some of these possibilities are described below, based upon the following example:

Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends January 4, 2012. His company is going to file his LC on May 4, 2011.

In this example, Mr. Kumar's six years will end before his LC will have been pending for at least 365 days. The possibilities are as follows.

Option 1, Best Possibility: Fast Approval

If the LC is approved quickly, then Mr. Kumar's employer could file an I-140 petition and request premium processing of that petition. If the I-140 is approved before Mr. Kumar's six years ends, he then would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year H1B extensions.

At the time of this writing, Option 1 is realistic in many cases.  LC processing has become much faster than in the recent past. In some instances LCs are being approved within a few days or weeks of filing, if there is no U.S. Department of Labor audit on the case. This allows such a case to move forward for filing and, hopefully, approval of the I-140 petition.

A variation of Option 1 would be for the LC and I-140 petition to be approved shortly after the end of Mr. Kumar's six years. In this event, he would be able to get three additional years of H1B time if he left the United States at the end of his six years or changed to another nonimmigrant status, such as H-4, in the interim and remained in the U.S. It is safest to discuss these options with a knowledgeable lawyer to ensure that there is a clear understanding of the options and risks. The U.S. employer would likely have to be involved in these discussions as well.

Option 2: Recapture of H1B Time

The six-year limit for H1B status is only counted against time spent in the United States. Thus, if an individual has spent time abroad during the six-year period, s/he can recapture that time abroad.

In our example, if Mr. Kumar spent enough time abroad, he could qualify for an extension of his H1B on that basis. This may be enough to bridge the gap between his six-year expiration and the 365-day point.

Option 3: Leave the U.S. and Return After the 365-Day Point

In our example, there is a gap between the expiration of the six years in H1B status (January 4, 2012) and the 365-day point (May 4, 2012). One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one-year H1B after the LC reaches the 365-day point. Thus, Mr. Kumar would have to spend January 4 - May 4, 2012 outside of the U.S., but he would be able to return in H1B status after the 4th of May 2012 for one year. He would be eligible for further H1B extensions, as long as his green card case remains in process. This is often a workable option for positions that can be performed remotely, or for employers with offices outside the United States.

This option can be combined with the recapture provisions to minimize the time spent abroad. Using this option does not make the individual subject to the H1B cap or lottery. The ability to obtain a seventh-year H1B from abroad was covered in our NewsFlash, USCIS Memo on H and L Timing & H1B/H4 Decoupling (20.Dec.2006).

Option 4: Dependent Status

Some of those reaching the end of their six years in H1B status may be able to change to dependent statuses through their respective spouses. Under the decoupling memo, referenced above, the time in H1B status does not limit eligibility for time in H-4 status. Of course, employment is not possible in H-4 status.

If one happens to be married to an L-1 principal, however, then the status of L-2 spouse would be a good option, as this allows for employment authorization. If one's spouse is also the beneficiary of a green card case, this may provide options if the application for adjustment of status (I-485) can be filed. The I-485 filing would permit the applicant to obtain an employment authorization document (EAD), although it does not provide a way to extend the H1B status of a derivative (dependent) spouse.

In our example, Mr. Kumar might be able to change to H-4 status between January 4th and May 4th, 2012. The employer would have to be willing to continue to offer the position to him for the future and continue to support his green card case. Mr. Kumar would then be able to revert to H1B once 365 days elapsed since the filing of the LC. This timeframe could be reduced by any time available for recapture. The H1B petition filed on this basis would not be subject to the H1B cap.

Conclusion

The scenarios described here should help provide MurthyDotCom and MurthyBulletinreaders with clarity on this matter as to who may qualify. As each case is different, it is important to analyze your particular situation carefully and discuss the available options with a knowledgeable and experienced immigration lawyer.

[Osama Bin Gandhi]

Thank You for all your Inputs...

 

In limited circumstances, H1B visa status can be extended beyond 6 years if:

• The foreign national is the beneficiary of an approved I-140 petition.
• The foreign national is the beneficiary of a PERM petition or I-140 petition that has been pending for over 365 days.
• The foreign national is recapturing time spent outside the US during the past 6 years in H-1B status.

1 year extension Based on Pending PERM or I-140 petition under AC-21 104(a)

You may extend your H1B status annually in one-year increments if your PERM petition or I-140 petition was filed at least 365 days prior to the day when you reach the six-year limit.

3 year extension Based on Approved I-140 petition under AC-21 106(c)

You may extend your H1B status for 3 years if you are the beneficiary of an approved I-140 petition but your priority date is not current, (immigrant visa number is not available to you).

Recapturing Time Spent Outside the US

An H1B holder may apply for an H1B extension and “recapture” days spent outside of the US.

If the H1B visa holder was outside the US in the 6 years they held H1B status, they can recapture those days in an H1B extension application.

The H1B holder would submit the exit from US and entry back to US dates, as well as the corresponding stamps and I-94 copies from his/her passport.

[perugu_vada]

Filing Labor Certifications During Sixth Year of H1B[font='Trebuchet MS']
[Editorial Note: At MurthyDotCom we have published articles on immigration issues since 1994. Over time, earlier articles become outdated due to changes in the law, regulations, or the political or economic climate. This article remains relevant, and has been updated for the benefit of our readers.][/font][font='Trebuchet MS']
We at the Murthy Law Firm are often asked whether it is too late for an employer to file a PERM labor certification (PERM or LC). The question generally comes from individuals who are approaching or are already in the sixth year of H1B status. In many instances, the economic downturn has delayed the ability to file LCs. It is often assumed that it is impossible to file an LC if one is in the sixth year of H1B. This is not correct. The LC can be filed at any time. The questions surround possible options for one nearing the end of six years in H1B status in the United States. MurthyDotCom and MurthyBulletin readers dealing with this situation may find this discussion particularly helpful.[/font] Rule for H1B Extensions Beyond Six Years[font='Trebuchet MS']
The standard allowable time in the United States in H1B status is six years. In order for one to be eligible to extend H1B status beyond six years, it is necessary to qualify under either of two possible rules. These rules are part of the American Competitiveness in the Twenty First Century Act (AC21). The requirements are that (a) the foreign national must be the beneficiary of an LC filing made 365 days prior (or I-140 in those cases that do not need the LC filing); or (b) the LC and I-140 must be approved, with no visa number (based upon the priority date) available.[/font] LC or I-140 Filed Before End of Five Years in H1B Status[font='Trebuchet MS']
The first rule, known as the 365-day rule, is predictable. Generally, it is recommended that the employer file the LC application at least 365 days before the end of the six years of H1B status. This is still sound advice. It should not be construed to mean, however, that all is lost if the LC cannot be filed 365 days before the end of the sixth year in H1B status.[/font] LCs May Be Filed Anytime[font='Trebuchet MS']
As explained, the 365-day rule relates to the ability to extend the H1B status. It does not place a limit on the ability to obtain approval of an LC. LC decisions do not depend upon the immigration status of the foreign national beneficiary. The outcome of an LC filing is not connected to the time the beneficiary has remaining in H1B status. The permanent residency, or green card, is related to a future job offer concept, unlike the ability to obtain H1B extensions to live and work legally in the United States.[/font] Options if LC Filed in Sixth Year[font='Trebuchet MS']
If an LC is filed once the sixth year of H1B status has begun, there are a number of possible options and outcomes. Some of these possibilities are described below, based upon the following example:[/font][font='Trebuchet MS']
Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends January 4, 2012. His company is going to file his LC on May 4, 2011.[/font][font='Trebuchet MS']
In this example, Mr. Kumar's six years will end before his LC will have been pending for at least 365 days. The possibilities are as follows.[/font] Option 1, Best Possibility: Fast Approval[font='Trebuchet MS']
If the LC is approved quickly, then Mr. Kumar's employer could file an I-140 petition and request premium processing of that petition. If the I-140 is approved before Mr. Kumar's six years ends, he then would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year H1B extensions.[/font][font='Trebuchet MS']
At the time of this writing, Option 1 is realistic in many cases. LC processing has become much faster than in the recent past. In some instances LCs are being approved within a few days or weeks of filing, if there is no U.S. Department of Labor audit on the case. This allows such a case to move forward for filing and, hopefully, approval of the I-140 petition.[/font][font='Trebuchet MS']
A variation of Option 1 would be for the LC and I-140 petition to be approved shortly after the end of Mr. Kumar's six years. In this event, he would be able to get three additional years of H1B time if he left the United States at the end of his six years or changed to another nonimmigrant status, such as H-4, in the interim and remained in the U.S. It is safest to discuss these options with a knowledgeable lawyer to ensure that there is a clear understanding of the options and risks. The U.S. employer would likely have to be involved in these discussions as well.[/font] Option 2: Recapture of H1B Time[font='Trebuchet MS']
The six-year limit for H1B status is only counted against time spent in the United States. Thus, if an individual has spent time abroad during the six-year period, s/he can recapture that time abroad.[/font][font='Trebuchet MS']
In our example, if Mr. Kumar spent enough time abroad, he could qualify for an extension of his H1B on that basis. This may be enough to bridge the gap between his six-year expiration and the 365-day point.[/font] Option 3: Leave the U.S. and Return After the 365-Day Point[font='Trebuchet MS']
In our example, there is a gap between the expiration of the six years in H1B status (January 4, 2012) and the 365-day point (May 4, 2012). One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one-year H1B after the LC reaches the 365-day point. Thus, Mr. Kumar would have to spend January 4 - May 4, 2012 outside of the U.S., but he would be able to return in H1B status after the 4th of May 2012 for one year. He would be eligible for further H1B extensions, as long as his green card case remains in process. This is often a workable option for positions that can be performed remotely, or for employers with offices outside the United States.[/font][font='Trebuchet MS']
This option can be combined with the recapture provisions to minimize the time spent abroad. Using this option does not make the individual subject to the H1B cap or lottery. The ability to obtain a seventh-year H1B from abroad was covered in our NewsFlash, USCIS Memo on H and L Timing & H1B/H4 Decoupling (20.Dec.2006).[/font] Option 4: Dependent Status[font='Trebuchet MS']
Some of those reaching the end of their six years in H1B status may be able to change to dependent statuses through their respective spouses. Under the decoupling memo, referenced above, the time in H1B status does not limit eligibility for time in H-4 status. Of course, employment is not possible in H-4 status.[/font][font='Trebuchet MS']
If one happens to be married to an L-1 principal, however, then the status of L-2 spouse would be a good option, as this allows for employment authorization. If one's spouse is also the beneficiary of a green card case, this may provide options if the application for adjustment of status (I-485) can be filed. The I-485 filing would permit the applicant to obtain an employment authorization document (EAD), although it does not provide a way to extend the H1B status of a derivative (dependent) spouse.[/font][font='Trebuchet MS']
In our example, Mr. Kumar might be able to change to H-4 status between January 4th and May 4th, 2012. The employer would have to be willing to continue to offer the position to him for the future and continue to support his green card case. Mr. Kumar would then be able to revert to H1B once 365 days elapsed since the filing of the LC. This timeframe could be reduced by any time available for recapture. The H1B petition filed on this basis would not be subject to the H1B cap.[/font] Conclusion[font='Trebuchet MS']
The scenarios described here should help provide MurthyDotCom and MurthyBulletinreaders with clarity on this matter as to who may qualify. As each case is different, it is important to analyze your particular situation carefully and discuss the available options with a knowledgeable and experienced immigration lawyer.[/font]

thnx man
Very informative post

[ATOM]

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