6 years H1 B expiring labor pending

[scorpsteals]

My 6th year of H1B is expiring in June 2012. My priority date is Dec 30 2011. My employer received an audit and has responded to the RFE. I am going to India in June before my H1 expires. I plan to wait for the labor, I-140 and H1 to be approved before applying for an H1B visa in the US consulate. My question is what kind of Client and employer letters I would need when I go for stamping and what should they say.
Thanks.

[sac-r-ten]

As far as i know, one should have labor approved and pending for more than 365 days to get an extension on H1. Since it doesn;t look that way in your case, you won't be able to get an extension. But if you can get labor and I140 approved before the expiry, you can get extension.
Please talk to a attorney (or employer's law firm) on this as well.

good luck.

[scorpsteals]

You can get 3 year extensions if your I-140 is approved. I have clarified this from a couple of lawyers already. You have to leave the country or change status. You will not be able to work during the interim period.

[sac-r-ten]

then you might also know this, once you leave country after 6yrs are exhausted, you cannot 'apply' H1B for more than a year. So if you leave in Jun-Jul 2012, you cannot apply till Jun-Jul 2013. If the quota is not filled by that time for the following year (2014) you can apply then and have to go for stamping after Oct 2013. just fyi.

good luck.

[scorpsteals]

That is not true. You can apply for another extension if your I-140 is approved. If I-140 is approved you are no longer under the 6 year limit and can continue to do H1 extensions. Also the H1 is not filed in a new quota so it doesn't matter if the quota is full or not. The explanation you gave applies for cases where you didn't start your GC before your 6th year of H1 expired or if your labor or I-140 is denied. I checked these facts with 2 lawyers. Hopefully this info could be useful for someone in a similar situation.

[scorpsteals]

However this is not an ideal situation to be in as your GC sponsor still has to be willing to wait for a couple of months before Labor is approved and then apply and get 1-40 and H1B approved. All of this could take a couple of months and you could even get audits which could further delay the processing.

[sac-r-ten]

Originally Posted by scorpsteals

That is not true. You can apply for another extension if your I-140 is approved. If I-140 is approved you are no longer under the 6 year limit and can continue to do H1 extensions. Also the H1 is not filed in a new quota so it doesn't matter if the quota is full or not. The explanation you gave applies for cases where you didn't start your GC before your 6th year of H1 expired or if your labor or I-140 is denied. I checked these facts with 2 lawyers. Hopefully this info could be useful for someone in a similar situation.

Yes, you get extension depending on I140 approval. But that I140 approval has to come before the end of 6yrs. In your case if you leave US after end of 6yrs term and after that I140 is approved, it would not be applicable for extension from India. You have to file a new H1b (another 6yrs term) after waiting for 1yr. GC (I140) will continue as usual.

[fromnaija]

Originally Posted by sac-r-ten

Yes, you get extension depending on I140 approval. But that I140 approval has to come before the end of 6yrs. In your case if you leave US after end of 6yrs term and after that I140 is approved, it would not be applicable for extension from India. You have to file a new H1b (another 6yrs term) after waiting for 1yr. GC (I140) will continue as usual.

This is correct. The OP's understanding and/or his lawyer's explanations are wrong.

[scorpsteals]

Originally Posted by sac-r-ten

Yes, you get extension depending on I140 approval. But that I140 approval has to come before the end of 6yrs. In your case if you leave US after end of 6yrs term and after that I140 is approved, it would not be applicable for extension from India. You have to file a new H1b (another 6yrs term) after waiting for 1yr. GC (I140) will continue as usual.

I disagree. If I-140 is approved the 6 year limit is lifted and you are eligible for H1B extensions in 3 year increments. Please read below from MurthyLaw firm on the number of possibilities one has if he is in a similar situation.

MurthyDotCom : Filing Labor Certifications During Sixth Year of H1B

[fromnaija]

Originally Posted by scorpsteals

I disagree. If I-140 is approved the 6 year limit is lifted and you are eligible for H1B extensions in 3 year increments. Please read below from MurthyLaw firm on the number of possibilities one has if he is in a similar situation.

MurthyDotCom : Filing Labor Certifications During Sixth Year of H1B

I revise my view after reading the link you provided as well as some research on the internet.
Yes, in your case if you leave by end of six years you will be able to come back based on one year H1B if your LC is approved or three years if I140 is approved. Thank you.

I will leave others to answer your original question.

[sac-r-ten]

Originally Posted by scorpsteals

I disagree. If I-140 is approved the 6 year limit is lifted and you are eligible for H1B extensions in 3 year increments. Please read below from MurthyLaw firm on the number of possibilities one has if he is in a similar situation.

MurthyDotCom : Filing Labor Certifications During Sixth Year of H1B

So this is murthy's understanding of the law. i have been in this situation and consulted 3 attorneys. luckily my 140 got approve 1 month before the expiration and got 3yr on H1b before the end of the term.

Also murthy doesn't mention if the applicant is allowed to come back as soon as 140 is approved, and does mentions "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." So its not plain vanilla situation.

Good luck and let us know what happens to your case.

[WhyThisOnePostDi]

Option 4: Dependent Status
Didn't find the scenario where I-140 is approved before the 365 days. Here it says only about LC approval and wait for 365 days for status change back to H1.

... to change to H-4 status ...
..... would then be able to revert to H1B once 365 days elapsed since the filing of the LC.

Can he/she switch back to H1 once I-140 is approved? Because I-140 has to be filed within 6 months and with premium application approval will be faster.

Originally Posted by scorpsteals

I disagree. If I-140 is approved the 6 year limit is lifted and you are eligible for H1B extensions in 3 year increments. Please read below from MurthyLaw firm on the number of possibilities one has if he is in a similar situation.

MurthyDotCom : Filing Labor Certifications During Sixth Year of H1B

[scorpsteals]

This is what happened. Audit on 6th year for Labor. H1B expired so I went to India. Labor approved in 3 months and then applied for I-140 approved in 20 days.. applied for H1B approved in another 20 days.. so overall back in US in 4 months..

Originally Posted by sac-r-ten

So this is murthy's understanding of the law. i have been in this situation and consulted 3 attorneys. luckily my 140 got approve 1 month before the expiration and got 3yr on H1b before the end of the term.

Also murthy doesn't mention if the applicant is allowed to come back as soon as 140 is approved, and does mentions "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." So its not plain vanilla situation.

Good luck and let us know what happens to your case.

[sac-r-ten]

Originally Posted by scorpsteals

This is what happened. Audit on 6th year for Labor. H1B expired so I went to India. Labor approved in 3 months and then applied for I-140 approved in 20 days.. applied for H1B approved in another 20 days.. so overall back in US in 4 months..

Great. welcome back. you are rare case and definitely help others.

So was it Eb2 or Eb3? Did you go for stamping? just curious.

cheers,

[sac-r-ten]

Originally Posted by sac-r-ten

Great. welcome back. you are rare case and definitely help others.

So was it Eb2 or Eb3? Did you go for stamping? just curious.

cheers,

asking about stamping, since i have heard so many cases where there was client-vendor-employer setup and even with client/vendor letters they were held back on 221g.

thanks