Legal Question in Immigration Law in California

Re: Extend H1B beyond six years

Hi Mike,

Under Ac21, you can extend your h1b beyond six years provided the labor certification or i-140 is pending for more than 365 days. However, PERM labor cert is going much faster (For example, in our office we are getting them approved between 2-9 days for most of them). In this case, if you are Eb2 with a certified PERM and born in other countries than India or China, you can file for your adjustment of status (Form I-485) along with a work permit (Form I-765). At this point you can work but to travel you need to get an approved advance parole (Form I-131) AND you will not need the H1B anymore. If you are not under the EB2 category, ie, it is EB3 or other, you might want to get an approved I-140 as soon as possible. It will allow you to get a three year extension on your H1B.

If the above is not working -In the worse case scenario, you should opt for extra vacation for time you can recapture later. BY that time your PERM (if filed properly) should be approved or the I-140 should be approved.

[You should aslo read the Yates Memo dated May 2005.]

Note that I have only answered your question based on limited information. Each case is different, therefore, you might want to consult an attorney who can analyze your specific case. I have just provided informational material in this case.

Thanks.

Good Luck

Shah Peerally

Attorney at Law

Fremont CA.

[email protected]

Re: Extend H1B beyond six years

Dear Mike:

You are allowed a total of 6 years H-1B/L time under the Federal Regulations, with the exception of getting 1 year extensions if a PERM cases was filed within 1 year prior to the 6th year expiration. In your case, since the PERM application was not filed before the expiration of the 5th H-1B year, you will not be able to get a 1 year H-1B extension under AC-21. However, since in general, most PERM applications are being approved so quickly (we have some approved in 1 day after submission), it is possible that if you are filing under EB-2 (and you are not born in China, India, Phillipines or Mexico), that once you get the PERM approved, you can file I-140/I-485 concurrently, along with an I-765 (request for Employment Authorization) and an I-131 (advanced parole-permission to leave the US and re-enter while your adjustment of status application is pending). Additionally, even if you have an EB-3 case or you are from one of those countries listed above, although you can't file the I-485 until the priority date is current, once the employer files the I-140 and it is approved, you would be able to get an H-1B extension for 3 years under AC-21.

For further immigration information, please contact Jennifer Brill, Esq. , San Francisco