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  #1 (permalink)  
Old 03-05-2008, 11:06 AM
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Default 3 year H-1B extensions after 6 year-limit...the actual law.

All:

I had posted this in response to a question in another thread but I noticed this question popping up very often in several other discussion boards and among my friends, so I am reposting this as a new thread...hoping that it will show up whenever someone performs a search. Additionally, several lawers have gotten this law wrong, so it will help to have this information when talking to them.

The Qs everyone have about 3-year H-1B extensions (after 6 year-limit) are:
1. When am I eligible to get 3-year H-1B extensions?
2. Am I eligible for 3-year H-1B extensions even if I have already applied for my 485?
3. My 140 is not approved. Am I eligible for 3-year H-1B extensions?
4. My PD is current. Am I eligible for 3-year H-1B extensions?

Here's the actual law that I found when I was researching on this topic a while ago...

Based on Section 104(c) : "One-Time Protection Under Per Country Ceiling" of American Competitiveness in the Twenty-first Century Act of 2000 (AC21), the Yates May 2005 Memo on AC21 and I-140s clarifies that after a labor certification and I-140 petition is approved, a one time extension in a 3 year increment is allowed IF visas from the subject country are not available because of retrogression. Also, question #3 on page 11 of the Yates May 2005 Memo on AC21 and I-140s mentions that multiple extensions for a 3 year increment MAY be sustained, if visa retrogression continues, and would be approved at the discretion of the USCIS.

A significant chunk of lawyers are of the opinion that if you have applied for your 485 or your EAD, then you are not eligible for 3-year H-1B extension. I got my lawyer and my wife's lawyer (and another IV member's lawyer as well) to admit they were wrong about the 3-year H-1B extension eligiblity criteria after I showed them the actual law and the memo. So as per the law, if your LC and I-140 is approved and your PD is not current, you are eligible for a 3-year H-1B extension after the 6 year-limit. There is absolutely no mention of your 485 application in this specific law with regards to the eligiblity criteria.

For easy-to-understand reading on what the law and the memo says, see:
  • http://www.murthy.com/news/n_yath1b.html
    Murthy writes: Although this is designated as a "one-time protection," the Memo recognizes that, in some situations involving retrogression, three years may not be sufficient. Thus, it is possible to request more than one three-year H1B extension under this provision of the law, if one is otherwise eligible for this benefit, as outlined above.
Hope this helps you.

Cheers,
Jayant

Last edited by PD_Dec2002; 03-05-2008 at 11:09 AM.
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  #2 (permalink)  
Old 03-05-2008, 12:01 PM
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Thanks for researching this..!! I was totally confused about this till folks on this forum cleared it up for me.! Great work.! I'm sure this will help thousands of friends who visit here daily.!
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  #3 (permalink)  
Old 03-05-2008, 02:20 PM
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Default Ac-21

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Originally Posted by uslegals View Post
Thanks for researching this..!! I was totally confused about this till folks on this forum cleared it up for me.! Great work.! I'm sure this will help thousands of friends who visit here daily.!
If I use AC-21 and I do not have copy of I-140 approval notice, will I still be eligible for 3 year extension in the new company? I only have 140 case number printout. It is approved long back and I-485 is pending for more than 180 days. I am retrogressed.
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  #4 (permalink)  
Old 03-05-2008, 02:24 PM
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Default I got 3 year Extension

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Originally Posted by uslegals View Post
Thanks for researching this..!! I was totally confused about this till folks on this forum cleared it up for me.! Great work.! I'm sure this will help thousands of friends who visit here daily.!
I got my 3 yr extension approved ( 9th to 11th year) recently.
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  #5 (permalink)  
Old 03-05-2008, 02:29 PM
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Default details

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Originally Posted by natrajs View Post
I got my 3 yr extension approved ( 9th to 11th year) recently.
Can you give some details?
Was it in same company that approved your labour and I-140?
If not, did you have copy of approved I-140?
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  #6 (permalink)  
Old 03-05-2008, 02:33 PM
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I just posted this - Natrajs can you help.?

Hi Friends - Just wanted to check regarding the A # in PART -3 of the I-129 petition. Now that we have filed our 485's and we do have a A# from the 485 receipt notice - do we use that here.? or leave the A# unfilled.?

Also in PART -4 PROCESSING INFO - there is Q "Have you ever filed an immigrant petition for any person in this petition? " - do we check YES OR NO.? Are they asking about 140 or 485.? If we say they ask us to explain.!

Anybody - any input please.!

Thanks!
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  #7 (permalink)  
Old 03-05-2008, 02:35 PM
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Default It all depends on how USCIS decides to go

Technically, when I applied for my last H1 extension, dates were retrogressed for me and I was not eligible then to apply for 485 (Note: I had an approved 140 in hand by then). But, in less than a month dates did become available and I was able to file for 485. All of this was during the June/July fun last year.

Now, my expectaction was that since I applied for H1 extension when dates were retrogressed, I would be granted 3 years. But, when my H1 extension approval finally arrived in October (dates were not retrogressed at that time), to my great disappointment I got only 1 year So, when USCIS is determining whether dates are retrogressed for us, are they looking at H1 Receipt date or approval to determine the 1 vs 3 years for the extension? Many people have stated in forums that USCIS "should" and "is" using receipt date. But, in my case it was not true. So, it does not matter what the law states OR RATHER what WE interpret the law as stating. What matters is only how USCIS interprets the law and the action they take based on that.

So, this year I have to go through the H1 extension all over again. Once again, dates are currently retrogressed. So, will I get 3 years this time or will they give me only 1 year because my 485 is pending? Who knows and who cares any more....it has become an annual ritual for me...every April/May time period prepare the H1 extension, pay the fees to USCIS and expect them to hibernate my application for months...oct...nov...dec...jan until USCIS decides to finally grant the extension. I have been going through this annual ritual since 2005!

Last edited by arihant; 03-05-2008 at 02:40 PM.
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  #8 (permalink)  
Old 03-05-2008, 03:06 PM
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Default

Quote:
Originally Posted by arihant View Post
Technically, when I applied for my last H1 extension, dates were retrogressed for me and I was not eligible then to apply for 485 (Note: I had an approved 140 in hand by then). But, in less than a month dates did become available and I was able to file for 485. All of this was during the June/July fun last year.

Now, my expectaction was that since I applied for H1 extension when dates were retrogressed, I would be granted 3 years. But, when my H1 extension approval finally arrived in October (dates were not retrogressed at that time), to my great disappointment I got only 1 year So, when USCIS is determining whether dates are retrogressed for us, are they looking at H1 Receipt date or approval to determine the 1 vs 3 years for the extension? Many people have stated in forums that USCIS "should" and "is" using receipt date. But, in my case it was not true. So, it does not matter what the law states OR RATHER what WE interpret the law as stating. What matters is only how USCIS interprets the law and the action they take based on that.

So, this year I have to go through the H1 extension all over again. Once again, dates are currently retrogressed. So, will I get 3 years this time or will they give me only 1 year because my 485 is pending? Who knows and who cares any more....it has become an annual ritual for me...every April/May time period prepare the H1 extension, pay the fees to USCIS and expect them to hibernate my application for months...oct...nov...dec...jan until USCIS decides to finally grant the extension. I have been going through this annual ritual since 2005!
This happened in my friend's company as well. The lawyer successfully argued with USCIS that the applicant's PD was not current on the date the 3-year H-1B extension was filed. The law cannot be interpreted differently on different dates. Thus, it does not matter whether the PD is current or retrogressed when USCIS receipts it...what matters is whether on the day you filed your H-1B were you eligible for it.

But of course, YMMV based on how far your lawyer's willing to go. It's in his/her interest to get you a 1-yr extension since he makes more money filing for it thrice rather than filing a 3-yr extension once.

Cheers,
Jayant

Last edited by PD_Dec2002; 03-05-2008 at 03:10 PM.
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  #9 (permalink)  
Old 03-05-2008, 03:35 PM
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Quote:
Originally Posted by arihant View Post
Technically, when I applied for my last H1 extension, dates were retrogressed for me and I was not eligible then to apply for 485 (Note: I had an approved 140 in hand by then). But, in less than a month dates did become available and I was able to file for 485. All of this was during the June/July fun last year.

Now, my expectaction was that since I applied for H1 extension when dates were retrogressed, I would be granted 3 years. But, when my H1 extension approval finally arrived in October (dates were not retrogressed at that time), to my great disappointment I got only 1 year So, when USCIS is determining whether dates are retrogressed for us, are they looking at H1 Receipt date or approval to determine the 1 vs 3 years for the extension? Many people have stated in forums that USCIS "should" and "is" using receipt date. But, in my case it was not true. So, it does not matter what the law states OR RATHER what WE interpret the law as stating. What matters is only how USCIS interprets the law and the action they take based on that.

So, this year I have to go through the H1 extension all over again. Once again, dates are currently retrogressed. So, will I get 3 years this time or will they give me only 1 year because my 485 is pending? Who knows and who cares any more....it has become an annual ritual for me...every April/May time period prepare the H1 extension, pay the fees to USCIS and expect them to hibernate my application for months...oct...nov...dec...jan until USCIS decides to finally grant the extension. I have been going through this annual ritual since 2005!
I was exactly in the same situation as you. I got my I-140 approval in May 2007 and applied for H1B three year extension in June 2007. The dates became current in July 2007 and I got our H1B/H4 approval for 1 Year. As per Yates memo, I should have got 3 year extension with I-140 approval and dates not being current when I applied for H1B extension(June2007). I forced my company Attorney to contact USCIS CSC to ammend the approval of our H1B/H4 for three years. Though it took more than 6 months, but I got my H1B ammended approval for 3 years in Feb 2008. My I-485 is pending when they ammended my approval to 3 years. So, If you have I-140 approved and dates are not current when you applied for H1B/H4 extension, one should get 3 year approval and not 1 year, even if I-485 is pending.

Last edited by canleo98; 03-05-2008 at 03:38 PM.
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  #10 (permalink)  
Old 03-05-2008, 04:26 PM
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Default receive date is used

Quote:
Originally Posted by canleo98 View Post
I was exactly in the same situation as you. I got my I-140 approval in May 2007 and applied for H1B three year extension in June 2007. The dates became current in July 2007 and I got our H1B/H4 approval for 1 Year. As per Yates memo, I should have got 3 year extension with I-140 approval and dates not being current when I applied for H1B extension(June2007). I forced my company Attorney to contact USCIS CSC to ammend the approval of our H1B/H4 for three years. Though it took more than 6 months, but I got my H1B ammended approval for 3 years in Feb 2008. My I-485 is pending when they ammended my approval to 3 years. So, If you have I-140 approved and dates are not current when you applied for H1B/H4 extension, one should get 3 year approval and not 1 year, even if I-485 is pending.
canleo98 is correct...the date that is used to consider if your priority date is current or not for your 3 year extension is the date when you filed for your H-1B extension and not the date when the USCIS is approving your H-1B. I had specifically asked my attorney this question and he affirmed that.
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Last edited by BEC_fog; 03-05-2008 at 04:27 PM. Reason: typo
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  #11 (permalink)  
Old 03-05-2008, 04:36 PM
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sweet_jungle is a jewel in the rough sweet_jungle is a jewel in the rough sweet_jungle is a jewel in the rough
Default details

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Originally Posted by sweet_jungle View Post
Can you give some details?
Was it in same company that approved your labour and I-140?
If not, did you have copy of approved I-140?
Hi natrajs,
can you answer my questions above?
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  #12 (permalink)  
Old 03-05-2008, 11:31 PM
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Default Changing Employers -is H1-B1 required with new employr once i-485 pending +180 days?

I am considering switching employers

I have my I-140 and my I-485 has been pending for more than 180 days
I also have an H1-B valid for 3 years with my current employer
I have EA card valid until Sept 08

will I need to renew the H1-B with my new employer ?

Please advise
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