Single H-1B Filing Allowed When Time Remains in Sixth Year
Once an alien is eligible for the seventh-year H-1B extension, it can be requested even if time remains in the sixth year. It is not necessary to have an employer file for an H-1B petition through to the end of the sixth year and then file again to request the seventh-year extension, if the alien is eligible for the seventh-year extension at the time of the combined filing. As long as 365 days have passed since a labor certification or employment-based immigrant petition was filed for the alien, they may file for a one-year incremental extension and any time remaining in the original six years at the same time.
The Need to Qualify is Only as of the Requested H-1B Start-Date (Not the Filing Date)
Under Yates's May 2005 Memo, it is necessary to establish that the extension criteria are met on or before the requested start date. Therefore, an H-1B petition can be filed before the 365 days are completed, as long as the start date requested on the I-129 is after the 365-day requirement has been met. The Memo states that only the current beneficiary of a Labor Certification can use the H-1B seventh-year extension provisions. Thus, in a labor substitution situation, in which a new beneficiary is substituted into a case for the original beneficiary, the original beneficiary naturally loses his or her ability to use the Labor Certification as the basis for any future H-1B extensions.
Additional resources provided by the author
See our web site at www.inteconlaw.com and call us for a free telephone consultation at (949) 833-8021. Law Offices of David D. Murray handles immigration cases across the USA and around the world.
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