Bashyam Spiro LLP - Beyond Six Years On H-1B Status
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Bashyam Spiro LLP - Beyond Six Years On H-1B Status






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Bashyam Spiro LLP - Beyond Six Years On H-1B Status Bashyam Spiro LLP - Beyond Six Years On H-1B Status Presentation Transcript

  • H-1Bs Beyond 6 Years
  • H-1B’s – Background
    • H-1B available if two sides of equation are met:
    • 1. Job is specialty and necessitates use of degreed professional
    • 2. Prospective EE has degree or equivalent
  • Limits on H-1B Visa
    • 6 Year Limit
    • Time that was used in any H status counts against 6 years
      • Spouse had H-1B and EE had H-4
      • EE was H-3
  • The New Law
    • New Law: November 2, 2002
    • BCIS Memo to the Field: April 24, 2003
  • Main Points
    • H-1B status may be extended beyond the 6-year maximum period if:
      • at least 365 days have passed since filing of a Labor Certification application.
      • OR
      • at least 365 days have passed since filing of an employment-based (EB) immigrant petition.
    • The H-1B alien must be in valid H-1B status when you ask for the 7 th year extension
    • Extensions of H-1B status will be made in one-year increments until a final decision is made on the alien’s application for permanent residency.
  • Hypos
    • Johann’s H-1B 6 th year expires 2/7/03
    • Johann’s LCert filed on 2/19/02
    • Johann took several trips outside the US to home country in Africa
      • When file?
      • What about the 12 days? Filed recapture?
    • Labor Certification Substitution Cases and Denials
    • Regulations will apply in the case of labor certification substitution cases IFF
      • proof can be provided showing that the H-1B alien will be substituted into the pending case of another labor certification beneficiary.
    • DOL has agreed to work with BCIS to provide receipts of filing for the sake of proving extension eligibility using a substitution case.
      • Send self-addressed postcard when filing a LCerts
    • On Labor Certification denials: if a Labor Certification application is denied, and the decision is appealed inside of 35 days to BALCA, then the extension will be available until the appeal is adjudicated.
    • Regarding Family Members
    • Family members are eligible for H-4 status for the same extensions as the principle H-1B beneficiary.
    • Note that
      • family members who have been in the US for the maximum period of H-1B status are eligible to change their status to H-4 and obtain the extension benefits as the eligible H-1B spouse,
      • ON THE DOWNSIDE these family members who wish to continue working beyond 6 years in their own H-1B status are not allowed to do so (unless eligible on their own) - and must change to H-4 status to receive extensions along with the eligible H-1B principle alien.