As the H1B filing deadline approaches, lawyers and employers are scrambling to get the cases ready for filing on April 1. Our office sure is in a state of war as stacks of H1B files are moving between the copy machines into organized FEDEX envelopes.
This is a last minute tip from the USCIS Vermont Service Center (VSC) that will be receiving cases along with the California Service Center.
Officials from VSC confirmed that the “in process” screen shot from the Department of Labor (DOL) website indicating that a PERM application remains pending still is the best evidence to document eligibility for H-1B extensions under AC21 §106(a). If an application is under appeal or reconsideration and the status has not been updated on the DOL website, VSC has and will continue to accept copies of e-mail correspondence or affidavits from counsel or the employer attesting that a request for review/reconsideration or appeal of a denied labor certification has been filed with DOL. For correspondence sent by courier, it also is helpful to include the tracking report evidencing delivery to DOL.
The key point was that the VSC noted that only one of the following conditions need to be met as of the date of filing of the extension request:
1) 365 or more days have passed since the filing of any application for labor certification; and, the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or
2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or
3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.
With respect to the first two conditions, the VSC has confirmed that the Neufeld memo amends previous guidance to allow eligibility for an extension beyond the 6th year as long as one of these criteria are met prior to the alien’s requested start date, regardless of whether the H-1B extension application was filed prior to the passage of such period of time. For an alien who has already reached the six-year maximum, they are eligible to extend H-1B status beyond the six-year “cap” if the labor certification application or I-140 petition has been pending for at least 365 days prior to the alien’s requested start date on the petition.
Please email us for more information. Good luck to all the H1B candidates.