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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