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TyTy180
11-16-2015, 12:24 PM
Hi!

My H1B expires on Jan 3rd 2016 (all six years)
I have an approved LC.
I have an approved I-140.
I-485, work auth, and advance parole have been filed.
I'm from Sri Lanka and as such fall into Rest of the World priority date category.
Filed under EB2, which has priority date current.

It has not been 365 days since the filing for my labor certification, it was filed in April 2015.
Is there any way to extend my H1B beyond 6 years with priority date being current?

Thanks

Flyingcrow
11-16-2015, 12:44 PM
Hi!

My H1B expires on Jan 3rd 2016 (all six years)
I have an approved LC.
I have an approved I-140.
I-485, work auth, and advance parole have been filed.
I'm from Sri Lanka and as such fall into Rest of the World priority date category.
Filed under EB2, which has priority date current.

It has not been 365 days since the filing for my labor certification, it was filed in April 2015.
Is there any way to extend my H1B beyond 6 years with priority date being current?

Thanks

Where does it say you cant extend your H1b based on approved i140 if PD is current?
As well once you apply, you are good, by the time they pick up the case, you will have EAD in your hand.

TyTy180
11-16-2015, 01:20 PM
The lawyers representing my company are saying that there isn't a provision to apply. They are saying any H1B extension beyond the 6 years can only be done using the AC-21 provision and that stipulates that the H1B visa can be extended beyond 6 years under one of two situations:
1. It is has been more than 365 days since you applied for the LC or I-140, so you can extend H1B beyond 6 years - Able to apply for a 1 Year extension.
2. If the I-140 is approved but the priority date is not current - then you are able to apply for a 3 year extension.

But I agree with you in that I see no where that it says you cant apply for an H1B extension beyond 6 years if you have a I-140 approval but the priority date is current.

Is it okay to apply for an H1B extension knowing that it might get declined, just to by time till the Work Authorization (EAD) gets be approved?

Thoughts?

Himesh_Reshammiya
11-16-2015, 08:50 PM
some more knowledgeable can vet this, but I have friends whose date is/was curret. they applied for AOS and whether or not they received EAD yet they are still working on H1 for last 3-4 years and have received h extentions.. i think u can continue to work on & extend h1 until u activate EAD - either by submitting i-9 after u receive ead or re-enter the country by using AP..

ur company might be trying to avoid the additional cost on h1 extension.. for them its useless to spend because ead renewal costs, ap etc might be born by you..

TyTy180
11-17-2015, 03:00 PM
some more knowledgeable can vet this, but I have friends whose date is/was current. they applied for AOS and whether or not they received EAD yet they are still working on H1 for last 3-4 years and have received h extensions.. i think u can continue to work on & extend h1 until u activate EAD - either by submitting i-9 after u receive ead or re-enter the country by using AP..

ur company might be trying to avoid the additional cost on h1 extension.. for them its useless to spend because ead renewal costs, ap etc might be born by you..

Hi!

Thanks for the response!
But I'm not sure I'm understanding what you are suggesting. If your friend applied for the AOS, and is working for 3 to 4 years and has extended their H1b then it implies that their priority date is not current, is that a fair assumption?
The question I have is around if legally its possible to extend the H1b past 6 years if the priority date is current. My company is more than willing to do it, but my lawyers are suggesting its not possible in my case since the Priority Date is not current.

Flyingcrow
11-17-2015, 03:58 PM
The lawyers representing my company are saying that there isn't a provision to apply. They are saying any H1B extension beyond the 6 years can only be done using the AC-21 provision and that stipulates that the H1B visa can be extended beyond 6 years under one of two situations:
1. It is has been more than 365 days since you applied for the LC or I-140, so you can extend H1B beyond 6 years - Able to apply for a 1 Year extension.
2. If the I-140 is approved but the priority date is not current - then you are able to apply for a 3 year extension.

But I agree with you in that I see no where that it says you cant apply for an H1B extension beyond 6 years if you have a I-140 approval but the priority date is current.

Is it okay to apply for an H1B extension knowing that it might get declined, just to by time till the Work Authorization (EAD) gets be approved?

Thoughts?

After little googling, it appears like they are right. In this case, are they suggesting you to travel out of country and appear for consular processing? Or can you switch to B1 visa?
Or if your spouse is on H1 as well, you might have to switch to H4.

Applying the H1 extension knowing that it would get rejected, would put you at risk, since during the period after Jan 3rd until the date you get your EAD, you would be 'Out of status' unless and otherwise you get your EAD in hand on or before Jan 3rd.

TyTy180
11-18-2015, 10:52 AM
After little googling, it appears like they are right. In this case, are they suggesting you to travel out of country and appear for consular processing? Or can you switch to B1 visa?
Or if your spouse is on H1 as well, you might have to switch to H4.

Applying the H1 extension knowing that it would get rejected, would put you at risk, since during the period after Jan 3rd until the date you get your EAD, you would be 'Out of status' unless and otherwise you get your EAD in hand on or before Jan 3rd.

Yes one of the options they are suggesting is that I travel out of the country between now and when my H1 expires, so I can gather days that I can reclaim, the hope is that this will hold me over till the EAD is approved.

Another option is to leave the U.S. a few days before my H1b expires and then return back with the EAD and AP (advance parole)