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

13 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 It said" If the EB immigrant petition was filed without labor certification, the extension is no longer valid if the EB immigrant petition is denied."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?

Comment added on 02 Mar 2011 by iMoon:

Hi
Sorry for invoking this dead thread but this is the closest to my case !!
140 filed in August 2010,140 Denied(18th Feb 11),H1B expiring June 2011...If we appeal on time can I get H1B extension based on pending appeal? (I am not clear about that 365 days rule if that is applicable to 140 also)
Thanks in Advance

Comment added on 02 Mar 2011 by Andrew M. Wilson:

If your PERM was filed more than 365 days ago as of June 2011, you should be able to file for an H-1B extension under AC21 based on the appealed I-140.

Depending on the reason for the denied I-140, rather than appeal the denial, you could simply file a new I-140 under premium processing and have that approved prior to June 2011 so you can extend your H-1B for an additional 3 years under AC21.

Please contact me anytime if you require assistance with your analyzing the denied I-140 and determining your best strategy.

Regards,

Andrew M. Wilson, Esq.
awilson@srwlawyers.com
716-854-7525

Comment added on 11 Apr 2011 by anith:

Hi,

2007 Oct Labor Approved
2009 March RFE on 140 and denied after reply in June 2009. No action taken on this.
I am currently in 6th year of H1B . Can I use the old labor for 7th year of extension?

Comment added on 24 Jul 2011 by visaguy:

You your 7th year of extension by applying for a new I-140 based on old labor cert.

Comment added on 24 Jul 2011 by visaguy:

You can get your 7th year of H-1B extension by applying for a new I-140 based on your old labor cert.

Comment added on 14 Aug 2011 by lostinvisa:

Hello,
I have I-290B(Appeal for denied I-140) pending for 34 months. My 6th yr of H1B is expiring on 31st Dec 2011. When can I apply for H1B extension.
Thank you

Comment added on 16 Sep 2011 by andhrabull:

Hello,
I am on H1-B with company A on 7th Yyar. H1-B valid until 04/02/2012. My I-140 got denied on 08/12/2011. Company A appealed denied I-140 on 09/09/2011 and waiting. I got another offer from company B and they agree to start my GC process. At this point of time, Can I transfer my existing H1-B to company B...? Thank you so much for your time.

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

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