7th Year H-1B Extension Under AC21 and I-140 Appeal

Posted on 07 Jan 2009 by Andrew M. Wilson
Immigration Attorney, Buffalo, NY
www.srwlawyers.com

We are receiving more and more questions from foreign nationals about the ability to file for H-1B extensions beyond six years under AC21 if an I-140 has been appealed.

The answer to this question is absolutely yes. You can still apply for an H-1B extension beyond the normal six years if you have timely appealed a denied I-140.

There is a guidance memo from CIS in 2005 that addresses this issue. The memo reads that one is allowed to continue filing for H-1B one-year incremental extensions if s/he has a pending I-140 petition appeal at the Administration Appeals Office (AAO). The rationale is that a decision is not final if there has been a timely appeal.

While it is always best to avoid the I-140 denial, a timely appeal does preserve the ability to extend H-1B status beyond the normal six years under AC21.

Regards,

Andrew M. Wilson, Esq
awilson@srwlawyers.com
www.srwlawyers.com

6 comments

Comment added on 22 Jan 2010 by sunanda:

I am in 7th year of my H1b with company A and also my 1-140 denied and appeal is pending and also I-485 is ending. can I join company B with AC21. Company B has not started my GC process.

Sunanda

Comment added on 18 Sep 2009 by sunanda:

while I-140 denied and pending appeal makes your Adavance Parole valid , so one can visit their home country using AP with valid H1b visa ?

Comment added on 18 Sep 2009 by Andrew M. Wilson:

I do not believe that an I-140 appeal makes your AP valid. Usually an I-140 denial means the 485 is denied, or if the I-140 is appealed, the 485 is held in abeyance.

Safer to travel on H-1B visa in that case.

Comment added on 22 Nov 2009 by yclc:

The I140 appeal is denied in the middle of 7th year H1B extension,can the person work until the end of 7th year or he has to leave within 30 days after the denial decision made?

Comment added on 22 Nov 2009 by Andrew M. Wilson:

The H-1B should remain valid until its expiration regardless of whether the I-140 appeal is denied. You should be able to use that H-1B until expiration.

Comment added on 22 Nov 2009 by greencardeager:

I have once read from an article, which talked about Yates meno. It said" If the EB immigrant petition was filed without labor certification, the extension is no longer valid if the EB immigrant petition is denied." Did it mean that the one is working during 7th year extension based on EB1B(a petition without labor certification)appeal pending, if the appeal is denied, the one is not subject to use the remaining extension?

7th Year H-1B Extension Under AC21 and I-140 Appeal

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