H-1B extensions beyond the 6th year limitation

Extension requests on H-1B visas whose sixth-year limit expired are generally accepted until an irreversible decision has been made to deny the application. In the event that an extension is rejected by DOL, USCIS will consider the case pending regardless as long as it falls within the window period for the employer to file an appeal (including the duration when the appeal is pending with BALCA). The appeal time is 30 days for PERM and 90 days for RIR applicants from the date DOL decided not to consider the case favorably.

Documents to be considered as proof that the case’s status has been pending for 365 or more days are

1) SWA documents,

2) Documents issued by regional offices of ETA,

3) print outs of the database screen of a Backlog Elimination Center (BEC).

For full consideration, these documents should state the name of the petitioner (employer), ETA-750 filing date, name of the foreign national, and the case number of the ETA-750. If the labor certification was issued to another foreign national during the time when the case was pending for at least 365 days, the H-1B extension applicant will still be eligible for extension. Such cases would be allowed to benefit from the extension when the petitioner is able to provide evidence that the foreign national has a pending or approved I-140.

If proof of a pending case is not available, mailing receipts may be considered. {mospagebreak}On the other hand, if the unavailability of the documents occurred as a result of DOL’s transition to the PER system, the USCIS will accept evidence of mailing of ETA-750 (certified mail receipt, for example) or proof of courier delivery. Under such circumstances, a signed confirmation of the employer must be attached with the evidence. The statement of confirmation should include name of employer, ETA-750 filing date, name of foreign national, and the case number.

Cases converted to PERM may still retain the priority date of the ETA-750 to prove that the labor certification was filed at least 365 before the starting date of the requested extension. Conditions that determine the acceptance of the ETA-750 priority date depend on the fact that the requirements of the job opportunity remain unchanged with the exception of salary.

However, if the changes concern relocation within the same geographical region, they will not negatively affect the priority date transferred from ETA-750. On the flip side, if the changes involve an upgrade of requirements such as from Bachelors degree to Master’s, then those adjustments will impact the priority date. The employer, in such cases, must provide documents used for the earlier filing as well as a statement that explains changes made to the requirements (if changes were made).

I-140 PRIORITY DATES: The pre-PERM priority date is the earliest date the ETA-750 was accepted by a DOL office. For PERM cases, the priority date is the date on which the application for labor certification is filed with ETA. With regard to applications converted to PERM, the date entered by DOL in Section O of ETA-9098. ETA-750 filing dates will be honored if all requirements of the job and the name of the foreign national remain the same. As far as Schedule A labor certifications, the date the petition is filed with the USCIS will be kept as the priority date.

REQUESTS FOR DUPLICATE LABOR CERTFICATION: The memo states that it is only at the written request of USCIS that the DOL will issue pre-PERM duplicates of labor certification documents for I-140 cases filed with USCIS. Duplicates will be issued on condition that labor certification (LC) documents have been lost or destroyed permanently. An immigration or consular officer, the foreign national, the employer, the attorney representing the foreign national or the employer must make a written request to DOL. It is only after the reception of such requests that the DOL will directly send the duplicate to the immigration or consular officer. The USCIS will not provide copies of duplicates of LC to petitioners or attorneys.