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rkat
02-27-2008, 11:20 AM
Hello Friends - I work on a H1B visa at a University (CAP EXEMPT).

I started my H1 in August 2003 and my 6th year of H1B expires in August 2009. I have a 140 approval and have submitted my papers for AOS in July 2007. My current H1 is valid till June 2008 and i submitted my papers for my
H1B extension with my university HR.

Period of Employment on my LCA was indicated as a 3 year validity period (July 2008 till June 2011 - based on my 140 approval). My HR faxed me a copy of the APPROVED LCA and to my astonishment i saw that the end date of employment on my LCA is June 2009. SO I WAS ALLOWED ONLY A ONE YEAR EXTENSION..?? I don't understand WHY..?? SHOULD'nt i be allowed to get a 3 year extension right now OR DO I have to wait to complete my INITIAL 6th year (in August 2009) and ONLY then will i be able to get 3 more years.? I thought i should be allowed to get 3 year increment right now.!!

Can somebody please advice. WHAT SHOULD my HR do now.? Can they resubmit the LCA.? I suspect that they did not fax the 140 approval with the LCA..? Do we have to also fax the 485 RN with the LCA..? PLEASE HELP!

Thanks a lot.!

jasmin45
02-27-2008, 11:31 AM
Hello Friends - I work on a H1B visa at a University (CAP EXEMPT).

I started my H1 in August 2003 and my 6th year of H1B expires in August 2009. I have a 140 approval and have submitted my papers for AOS in July 2007. My current H1 is valid till June 2008 and i submitted my papers for my
H1B extension with my university HR.

Period of Employment on my LCA was indicated as a 3 year validity period (July 2008 till June 2011 - based on my 140 approval). My HR faxed me a copy of the APPROVED LCA and to my astonishment i saw that the end date of employment on my LCA is June 2009. SO I WAS ALLOWED ONLY A ONE YEAR EXTENSION..?? I don't understand WHY..?? SHOULD'nt i be allowed to get a 3 year extension right now OR DO I have to wait to complete my INITIAL 6th year (in August 2009) and ONLY then will i be able to get 3 more years.? I thought i should be allowed to get 3 year increment right now.!!

Can somebody please advice. WHAT SHOULD my HR do now.? Can they resubmit the LCA.? I suspect that they did not fax the 140 approval with the LCA..? Do we have to also fax the 485 RN with the LCA..? PLEASE HELP!

Thanks a lot.!

You will have to complete your initial 6 years before the 3 year extension can be approved based on approved I-140. This has happened with someone that I know as well and I spoke to my attorney to clarify this then.
hang on! you will hear from other knowledgable members.

xela
02-27-2008, 11:40 AM
I started my h1 in oct 2000 and got it till jan 2003 then 2003-2006 so my 6 years would have been over in oct 2006, because of this ( and I recaptured some months for travelling abroad) I only got the 1 st extension until Jan 2007 and had to get another one at that point which was then a 3 year extension.

Don't worry you'll get a 3 year one next time, it sucks but it happens all the time,......

rkat
02-27-2008, 11:42 AM
Thanks for your reply.! I totally confused about this AC21 rule that allows 3 year extensions based on 140 approvals.! No where does it state that one has to complete their INITIAL 6 years before they can get the 3 YEAR INCREMENTS.! I know this issue has been discussed a lot on IV before - but if i rememeber correctly there have been folks who got 3 year increments before completing thier 6th year.! It's just confusiong - (i do not doubt ur advice at all) -- BUT Do u think resubmitting the LCA with the 140 approval may help. Just a thought.!

Thanks!

xela
02-27-2008, 11:50 AM
it might help, but why don't you do that for next year, unless you have to travel and need the visa stamp this year and next year (which is a hassle and time consuming), what is the point of reapplying for the H1B now rather then towards the end of this year for your next extension?

snarla
02-27-2008, 11:51 AM
Because of a I94 issue, i was forced to apply for extension 7 months before 6th year expired.

My lawyer applied for a 3 year extension ( i saw the dates on the extension application) and attached my I140 approval with the application.

Got the renewal for 3 years.

You may want to check you extension application and see how many years of extension were requested.

waitin_toolong
02-27-2008, 12:07 PM
Actually you are better off this way. This way you use the entire 6 years and then apply for 3 Yr extension rather than losing that one year you are entitled to. Apparently the law about 3 yr increment is a bit fuzzy and that 3 yr can be used only once.

rkat
02-27-2008, 01:31 PM
Hello Friends - This is what i found out -

This is the most recent information we have from an immigration attorney:

Aspects of AC21 pertaining to H1Bs fall within two main categories: H1B extensions beyond the sixth year and H1B portability provisions.

The extensions beyond the sixth year fit within two possible provisions. The first of these, Section 106(a), allows for unlimited one-year extensions based upon the filing of an employment-based green card case (either the Labor Certification or the I-140 petition in non-Labor Certification cases) at least 365 days prior to the expiration of the H1B six-year period.

The second extension provision, Section 104(c), allows for three-year H1B extensions based upon the foreign national's being the beneficiary of a green card case that cannot proceed due to per-country ceilings on the number of immigrant visas that can be issued each year. This means that, if one is subject to visa retrogressions and the I-140 has been approved, then s/he would be entitled to longer H1B extensions.
I GUESS ALL OF THIS BOILS DOWN TO " BEYOND SIXTH YEAR EXTENSIONS " --- as most of you have indicated - looks like i have to complete the SIXTH YEAR and then only can i apply for the 3 year increment.!

..waitintoolong....-- can u please elaborate on " 3 yr can be used only once " - Does that mean that if one gets the FIRST 3 year extension from the 6th - 9th year - CAN THEY EXTEND SECOND TIME AGAIN FROM 9th - 12 th year of H1...(assuming one does not get GC by 9th year..!!)...

Thanks for all the comments everybody.! Appreciate it.!

ajju
02-27-2008, 01:59 PM
Hello Friends - I work on a H1B visa at a University (CAP EXEMPT).

I started my H1 in August 2003 and my 6th year of H1B expires in August 2009. I have a 140 approval and have submitted my papers for AOS in July 2007. My current H1 is valid till June 2008 and i submitted my papers for my
H1B extension with my university HR.

Period of Employment on my LCA was indicated as a 3 year validity period (July 2008 till June 2011 - based on my 140 approval). My HR faxed me a copy of the APPROVED LCA and to my astonishment i saw that the end date of employment on my LCA is June 2009. SO I WAS ALLOWED ONLY A ONE YEAR EXTENSION..?? I don't understand WHY..?? SHOULD'nt i be allowed to get a 3 year extension right now OR DO I have to wait to complete my INITIAL 6th year (in August 2009) and ONLY then will i be able to get 3 more years.? I thought i should be allowed to get 3 year increment right now.!!

Can somebody please advice. WHAT SHOULD my HR do now.? Can they resubmit the LCA.? I suspect that they did not fax the 140 approval with the LCA..? Do we have to also fax the 485 RN with the LCA..? PLEASE HELP!

Thanks a lot.!

If your PD is current.. you won't be issued 3 year extension.. plus there are other scenarios as already explained.. So best bet is next extension.. But who knows.. you may get GC before that :-)

immigrationvoice1
02-27-2008, 02:05 PM
I remember reading in some other forum that 3 year extension beyond the initial 6 years happens only when I-140 is approved BUT I-485 not applied.

After you have the approved I-140 and already applied for I-485 (and waiting for the GC to arrive), you can only get H1B extension 1 year at a time.

Do not know if this is true. Can any of the gurus here shed some light on this ?

absaarkhan
02-27-2008, 02:05 PM
You can Get THE 3 Year Extension "ANY NUMBER OF TIMES"
beyound the Regular 6 Years on H1B if your I-140 is APPROVED.

There is NO LIMIT ON THIS SCENARIO.


Hello Friends - This is what i found out -

This is the most recent information we have from an immigration attorney:

Aspects of AC21 pertaining to H1Bs fall within two main categories: H1B extensions beyond the sixth year and H1B portability provisions.

The extensions beyond the sixth year fit within two possible provisions. The first of these, Section 106(a), allows for unlimited one-year extensions based upon the filing of an employment-based green card case (either the Labor Certification or the I-140 petition in non-Labor Certification cases) at least 365 days prior to the expiration of the H1B six-year period.

The second extension provision, Section 104(c), allows for three-year H1B extensions based upon the foreign national's being the beneficiary of a green card case that cannot proceed due to per-country ceilings on the number of immigrant visas that can be issued each year. This means that, if one is subject to visa retrogressions and the I-140 has been approved, then s/he would be entitled to longer H1B extensions.
I GUESS ALL OF THIS BOILS DOWN TO " BEYOND SIXTH YEAR EXTENSIONS " --- as most of you have indicated - looks like i have to complete the SIXTH YEAR and then only can i apply for the 3 year increment.!

..waitintoolong....-- can u please elaborate on " 3 yr can be used only once " - Does that mean that if one gets the FIRST 3 year extension from the 6th - 9th year - CAN THEY EXTEND SECOND TIME AGAIN FROM 9th - 12 th year of H1...(assuming one does not get GC by 9th year..!!)...

Thanks for all the comments everybody.! Appreciate it.!

Green.Tech
02-27-2008, 02:19 PM
I remember reading in some other forum that 3 year extension beyond the initial 6 years happens only when I-140 is approved BUT I-485 not applied.

After you have the approved I-140 and already applied for I-485 (and waiting for the GC to arrive), you can only get H1B extension 1 year at a time.

Do not know if this is true. Can any of the gurus here shed some light on this ?

I am curious about this as well. Anyone?

Ramba
02-27-2008, 02:30 PM
First, the approval of LCA is done by DOL, not by USCIS. 3 year extension based on 140 will be determied by uscis when applying H1B extension along with LCA. DOL generaly approves an LCA for 3 year period starting immediaty (starting period should be near to the date of application) . The problem here is, this guy applies an LCA for a 3 year period starting from July 2008, which is far away from now. Thats why they approved for one year. It is nothing to do with 140/AC21 etc.. In order get 3 year validity LCA, the starting date should be immediate. The best way is to appy LCA/H1B extension near the end of the expiry of H1B.I do not know why this guy applis H1B extension 1.5 years before its expiry.

kittu1991
02-27-2008, 02:46 PM
I am curious about this as well. Anyone?
You can get 3yr extension with approved I140 even after applying for I485. I got mine last month.

kittu1991
02-27-2008, 02:48 PM
First, the approval of LCA is done by DOL, not by USCIS. 3 year extension based on 140 will be determied by uscis when applying H1B extension along with LCA. DOL generaly approves an LCA for 3 year period starting immediaty (starting period should be near to the date of application) . The problem here is, this guy applies an LCA for a 3 year period starting from July 2008, which is far away from now. Thats why they approved for one year. It is nothing to do with 140/AC21 etc.. In order get 3 year validity LCA, the starting date should be immediate. The best way is to appy LCA/H1B extension near the end of the expiry of H1B.I do not know why this guy applis H1B extension 1.5 years before its expiry.

Feb 2008 to July 2008 is not 1.5 yrs, it is only 6 months. And what he did is correct. Moreover if you apply for extension 1.5 yrs in advance DOL will reject it right away.

rkat
02-27-2008, 03:14 PM
TO recap this is my situation -

I started my first H1 on 8/15/2003 - 8/14/2006
GOT Promoted - so second (current) H1 - 7/27/2005 - 6/30/2008
MY SIX YEARS will be up on 8/13/2009...!!

Since they say that H1 extension should be started 6 months prior to expiration - i started the process in Jan 2008 (since H1 expires 6/30/2008!). Our HR is really slow and takes weeks to act on things.! My LCA was only submitted last week and got back this morning. I saw the LCA copy that was faxed to DOL and it had a THREE YEAR validity.! I'm surprised though that when DOL sent it back - the vailidity was changed only to ONE YEAR.! So i guess whoever worked on my case - followed the FUZZY AC21 rule about completing 6 years, then applying for 3 year increments.! I guess.!

How does one capture " vacation time " or time outside the US..? Am i entitiled to put those extra 2-3 months on the I-129 petition.? If i do that the 129 will run beyond the LCA validity.! Is that allowed.? Ramba - i hope i answered ur Q as to why i applied early.!
Thansk!

JA1HIND
02-27-2008, 03:14 PM
I am curious about this as well. Anyone?

I had the same questions and posted the same yesterday and pretty much got the same response from attorney on another forum. Copied below the URL for reference. I even asked my attorney who filed my 140/485 concurrently and gave the exact answer, "If your priority date is backlogged, and you have an approved I-140, the law is clear - they must give you a three year extension."

http://immigration-information.com/forums/showthread.php?t=4373

This whole 3 years extension process is so confusing, has so many if's & but's & else...almost I get a head-ache...

kittu1991
02-27-2008, 03:21 PM
TO recap this is my situation -

I started my first H1 on 8/15/2003 - 8/14/2006
GOT Promoted - so second (current) H1 - 7/27/2005 - 6/30/2008
MY SIX YEARS will be up on 8/13/2009...!!

Since they say that H1 extension should be started 6 months prior to expiration - i started the process in Jan 2008 (since H1 expires 6/30/2008!). Our HR is really slow and takes weeks to act on things.! My LCA was only submitted last week and got back this morning. I saw the LCA copy that was faxed to DOL and it had a THREE YEAR validity.! I'm surprised though that when DOL sent it back - the vailidity was changed only to ONE YEAR.! So i guess whoever worked on my case - followed the FUZZY AC21 rule about completing 6 years, then applying for 3 year increments.! I guess.!

How does one capture " vacation time " or time outside the US..? Am i entitiled to put those extra 2-3 months on the I-129 petition.? If i do that the 129 will run beyond the LCA validity.! Is that allowed.? Ramba - i hope i answered ur Q as to why i applied early.!
Thansk!
Extending based on the approved I140, Labour and all kicks in only once 6yr time on the H1 runs out. There might be some lucky folks who got it otherwise, else that is how it works.
Since you can extent your H1 beyond 6 yr, most of the attorneys and HR doesn't want to take the pain of recapturing the vaccation time. What you do for that add on explanation of you vaccation time, when you apply for the last H1 extension within the 6yr time frame. Since the 6yr rule is not there becuase of the AC21, if you are in the GC queue DOL also normally ignores your vaccation time.

PD_Dec2002
02-27-2008, 03:34 PM
Here's what 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) (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=106_cong_public_laws&docid=f:publ313.106.pdf), the Yates May 2005 Memo on AC21 and I-140s (http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf) (that is, the memorandum issued by William R. Yates, the Associate Director for Operations at USCIS, on May 12, 2005 to the Regional Directors and the Service Center Directors), 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 UNAVAILABLE 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.

The only inconsistency that I have seen is where people who only have retrogressed PDs (that is, the PD is not unavailable) also have gotten 3-yr extensions.

For easy-to-understand reading on what the law and the memo says, see:

http://www.murthy.com/news/n_yath1b.html (http://www.murthy.com/news/n_yath1b.html)
http://www.ilawus.com/news/111 (http://www.ilawus.com/news/111)
Regards,
Jayant

webm
02-27-2008, 03:56 PM
Section 104(c) : "One-Time Protection" of Three-Year H1B Extension
©MurthyDotCom

This is the main bullet point from the memo..

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.

mrdelhiite
02-28-2008, 11:37 AM
If you already filed the I-485, we would only be able to request one year beyond the 6 years. We can apply for an additional 1 year for applicants who have a labor cert or I-140 that was filed over a year ago. We can request up to 3 years additional time for someone who canít file the I-485 because of priority date problems.


I still cant believe this is true ...being punished for filing 485 ... .. any comments ???


-M

immidude
02-28-2008, 11:45 AM
what if i want to do AC21 along with H1B do we get 3 years
any idea about this

You can get 3yr extension with approved I140 even after applying for I485. I got mine last month.

I am curious about this as well. Anyone?

mrdelhiite
02-28-2008, 11:54 AM
If you already filed the I-485, we would only be able to request one year beyond the 6 years. We can apply for an additional 1 year for applicants who have a labor cert or I-140 that was filed over a year ago. We can request up to 3 years additional time for someone who canít file the I-485 because of priority date problems.


I still cant believe this is true ...being punished for filing 485 ... .. any comments ???


-M

anyone >>???

PD_Dec2002
02-28-2008, 01:16 PM
If you already filed the I-485, we would only be able to request one year beyond the 6 years. We can apply for an additional 1 year for applicants who have a labor cert or I-140 that was filed over a year ago. We can request up to 3 years additional time for someone who canít file the I-485 because of priority date problems.


I still cant believe this is true ...being punished for filing 485 ... .. any comments ???


-M

Just show him the word of the law that I have provided in post 20 above: http://immigrationvoice.org/forum/showpost.php?p=226783&postcount=20

My lawyer was also of the same impression that if I-485 is applied for, then 3-yr extensions are not possible. I showed him the law and he agreed that it makes no reference whatsoever to I-485 filing wrt 3-year extensions. He showed it to other attorneys as well in his office, and they actually thanked me for it...go figure, attorneys thanking someone for explaining the law to them!

Regards,
Jayant

mrdelhiite
02-28-2008, 01:42 PM
Just show him the word of the law that I have provided in post 20 above: http://immigrationvoice.org/forum/showpost.php?p=226783&postcount=20

My lawyer was also of the same impression that if I-485 is applied for, then 3-yr extensions are not possible. I showed him the law and he agreed that it makes no reference whatsoever to I-485 filing wrt 3-year extensions. He showed it to other attorneys as well in his office, and they actually thanked me for it...go figure, attorneys thanking someone for explaining the law to them!

Regards,
Jayant

Yes sir u are right ... i got a e-mail back from her and she accepted that she was wrong. Thanks
-M