Website Q & A - October 20, 2007

Possible Options for H-1B Holders Expiring Their Six Year Limit Whose Labor Certification Applications Are Pending But If Approved Will Not Be Within The Six Years

Dear Mr. Lee,

I am in the sixth year of my H-1B which will expire on October 31, 2007. I filed my PERM labor certification application on December 15, 2006, but have not yet received my labor certification. My category is the employment second category for China born since I have an M.B.A. My lawyer had a lot of confidence and told me many times before that I could get my seventh year extension even if the priority date was not current through getting my I-140 preference petition approved as soon as I got my labor certification. Now she is not so sure. What are my options?

Dear reader:

There is the possibility that you will be entitled to the three year extension of H-1B status given to those who have an I-140 preference petition approved and whose priority dates are not yet current if you receive your labor certification very quickly and your I-140 preference petition is approved by the time of your expiration on October 31, 2007. The difficulty is of course that the time is coming up very rapidly and U.S.C.I.S. is no longer accepting the premium processing fee for I-140 petitions because of the large number of filings that it received for employment based I-140's during July-August 2007. The second possibility is that you might be able to file both I-140 and I-485 applications and request employment permission in the event that the second preference for China reaches December 15, 2006, by October or possibly November 2007 (H-1B holders have 10 days of satisfactory departure time). If neither of these scenarios comes to pass, you should either seek some other means of maintaining legal status in the U.S. (a sensible change of status request to F-1 status comes to mind) or leave the U.S. until the time that either one year has passed since the labor certification was filed or the I-140 preference petition is approved. If either event occurs, your petitioning organization could request an H-1B extension for you even if you are outside the United States.


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The information provided here is of a general nature and may not apply to any particular set of facts or circumstances. It should not be construed as legal advice and does not constitute an engagement of the Law Office of Alan Lee or establish an attorney-client relationship.