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Posted by
spm5166
on 06 Aug 2008 |
| Q. |
I-140 pending based on Labor Substitution and H1 extension
My 6 year H1 term ends on Feb 2010. Currently I have a I-140 (EB3 India) pending in NSC (since July 2nd) based on Substitute Labor. If my I-140 gets picked up for processing AFTER Feb 2009 (with < 365 H1 days remaining) and is denied (and I don't choose to appeal or file a MTR), on what basis can I file for H1 extension? I understand I can get a 1 year extension based on approved Labor, but the Labor does not have my name on it.
As a backup, ifI start my own EB2 PERM now (and I-140 later), will it jeopardize the existing pending I-140 application due to conflict of interest?
User's Location:
Palatine, Illinois, United States of America
Category:
Employment-based Green Card
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| Posted by
Andrew M. Wilson
on 07 Aug 2008 |
| A. |
My first question is whether you are allowed to utilize labor certification substitution in your case. As of July 16, 2007, there is a prohibition against the substitution of alien beneficiaries of labor certification applications. If you filed the I-140 on July 2nd, when was labor certification approved? (They expire after 180 days if I-140 was not filed)
If your I-140 is denied and there is no appeal or MTR, I do not think you have any basis to file for an H-1B extension under AC21. You can try and recapture any time not spent in the US during your previous H-1B approval, but cannot file for extension under AC21.
The first thing you need to check is if you even qualify to substitute the labor certification.
If no, you may want to start a new PERM matter now as I-140 will not be approved. You still have enough time to get evertything filed and still be eligible for H-1B extensions beyond six years under AC21 if necessary.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com |
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Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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| Posted by
spm5166
on 07 Aug 2008 |
| Q. |
My 140/485 based on Substitute Labor was applied on July 2nd, 2007. The labor was approved on Dec, 2006. At that time, I believe the law of labor expiring after 6 months was not in place yet.
It appears from your answer, that I will not be eligible for 1 year H1 extension based on Labor since this is a Labor Substitution case.
My follow up question is if I apply for a new EB2 PERM with the SAME company, will it jeopardize the EB3 140 that is pending (due to conflict of interest as the job positions will be different) causing me to lose the Priority date? Can I have multiple applications under different categories (EB2/EB3) from the same company when my initial EB3-140 is still pending?
Thank you |
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| Posted by
Andrew M. Wilson
on 08 Aug 2008 |
| A. |
If you have I-485 pending you obviously can obtain separate work permission (EAD) so the H-1B extension beyond six years may not be necessary. Obtaining the EAD and advance parole is nice because you do not need to worry about obtaining a visa at a conuslate. EADs are now being issued for two years now as well in some cases, so it may be better to obtain a two year EAD rather than a one year H-1B extension.
You should, however, be eligible for at least a one year or three H-1B extension if you want one come 2010. Your I-140 alone has been pending for more than one year so you should minimally be eligible for a one year extension depending on where priority dates are at the time. You can submit your I-140 receipt notice, approval notice (presumably by that time), I-485 receipt notice etc. to request either the one or three year extension.
More than 12 months is a little odd for your I-140 to remain pending. They are scrutinizing labor cert substitution filings pretty heavily (they do not like them which is why they were abolished.) I would make an inquiry into the Service Center to check on status of case.
You can start a new PERM process through same company if the position offered is different than what you have in the green card paperwork pending. The DOL may not even audit because your name is not on the first labor cert. Even if it does audit, you may explain, if applicable and accurate, that the company may also like you to fill a different permanent position so you are filing for both and keeping options open as to what the company will want from you in 1-2 years.
Regards,
Andrew M. Wilson, Esq.
awilson@srwlawyers.com |
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Andrew M. Wilson
Immigration Lawyer
Serotte Reich Wilson, LLP
(716) 854-7525
www.srwlawyers.com
Disclaimer: This information is general in nature and is not intended, nor should it be construed, as legal advice. This post does not create any attorney-client relationship between us. For specific advice about your particular situation, consult an attorney.
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