October 17, 2005 | In: 范毅禹律师
HOT TOPICS ¨C Priority Dates and Extension of H-1B Status
By: Beth Robertie, Associate
William R. Yates, Associate Director of Operations for the United States Citizenship and Immigration Services, recently issued a memo addressing various topics in immigration law. Here is a summary of important topics that he addressed:
1. Priority Dates for Employment-Based Form I-140 Petitions
The priority date attached to your I-140 is the single most important factor in your immigration case. Determining what the priority date will be has long been a source of confusion for immigrants and practitioners alike. Generally, for an employment-based visa petition supported by a labor certification issued by the Department of Labor, the priority date is the earliest date that the labor certification application was filed. Once the alien¡¯s I-140 application is approved, the alien beneficiary retains the priority date determined by the original Department of Labor filing, even for any future I-140 petitions, such as in the case of a new employer. Please keep in mind, however, that the new employer must obtain a new labor certification if required.
If the petition approved for a classification does not require a labor certification, such as for Schedule A or NIW petitions, then the priority date is the date the I-140 petition is filed with USCIS. In essence, the earlier you can get your paperwork in the better, but the priority date will vary based on the kind of petition you are filing.
2. Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition
If the alien is otherwise qualified for an extension of H-1B status, and they have had either a labor certification application or an I-140 pending for more than 365 days (measured from the requested start date of the H-1B extension), then they are eligible for an H-1B extension beyond the 6th year. These extensions of stay are granted in one-year increments only until either the labor certification, EB immigrant petition, or application to adjust status is denied, or the application to adjust status is granted.
An H-1B holder whose labor certification or I-140 has been pending for less than 365 days at the time of the requested start date of the extension would be ineligible for the extension of H-1B status.
This rule also applies where a labor certification has been pending for more than 365 without the filing of an I-140. As such, an alien beneficiary of an approved labor certification application filed at least 365 days ago or one that has been pending for more than 365 days is eligible for up to three one-year H-1B extensions even if they have not yet filed their I-140 petition. Since the PERM process of filing a Labor Certification Application is new, this situation is currently applying to those Labor Certification cases that were filed through the old Labor Certification process– Reduction in Recruitment (RIR) process.
Although we are anticipating a rule change in regard to this matter, at this time once a Labor Certification Application filed through the PERM process has been filed (and, presumably, approved, but not one that has been denied) over 365 days ago (not possible now, but after March 28, 2006) the beneficiary is qualified for H-1B extension in one-year increments beyond the six year maximum, even if an I-140 petition has not yet been filed. At some point in the near future, it is likely that this rule will change in regard to PERM , requiring an I-140 petition to be filed within a certain amount of time after PERM approval.
As all immigration matters are unique, should you have any questions on this matter or any other immigration matter, please contact an immigration attorney to assess your case.