Filing Labor Certifications During Sixth Year of H1B

[Editorial Note: At MurthyDotCom we have published articles on immigration issues since 1994. Over time, earlier articles become outdated due to changes in the law, regulations, or the political or economic climate. This article remains relevant, and has been updated for the benefit of our readers.]

We at the Murthy Law Firm are often asked whether it is too late for an employer to file a PERM labor certification (PERM or LC). The question generally comes from individuals who are approaching or are already in the sixth year of H1B status. In many instances, the economic downturn has delayed the ability to file LCs. It is often assumed that it is impossible to file an LC if one is in the sixth year of H1B. This is not correct. The LC can be filed at any time. The questions surround possible options for one nearing the end of six years in H1B status in the United States. MurthyDotCom and MurthyBulletin readers dealing with this situation may find this discussion particularly helpful.

Rule for H1B Extensions Beyond Six Years

The standard allowable time in the United States in H1B status is six years. In order for one to be eligible to extend H1B status beyond six years, it is necessary to qualify under either of two possible rules. These rules are part of the American Competitiveness in the Twenty First Century Act (AC21). The requirements are that (a) the foreign national must be the beneficiary of an LC filing made 365 days prior (or I-140 in those cases that do not need the LC filing); or (b) the LC and I-140 must be approved, with no visa number (based upon the priority date) available.

LC or I-140 Filed Before End of Five Years in H1B Status

The first rule, known as the 365-day rule, is predictable. Generally, it is recommended that the employer file the LC application at least 365 days before the end of the six years of H1B status. This is still sound advice. It should not be construed to mean, however, that all is lost if the LC cannot be filed 365 days before the end of the sixth year in H1B status.

LCs May Be Filed Anytime

As explained, the 365-day rule relates to the ability to extend the H1B status. It does not place a limit on the ability to obtain approval of an LC. LC decisions do not depend upon the immigration status of the foreign national beneficiary. The outcome of an LC filing is not connected to the time the beneficiary has remaining in H1B status. The permanent residency, or green card, is related to a future job offer concept, unlike the ability to obtain H1B extensions to live and work legally in the United States.

Options if LC Filed in Sixth Year

If an LC is filed once the sixth year of H1B status has begun, there are a number of possible options and outcomes. Some of these possibilities are described below, based upon the following example:

Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends January 4, 2012. His company is going to file his LC on May 4, 2011.

In this example, Mr. Kumar's six years will end before his LC will have been pending for at least 365 days. The possibilities are as follows.

Option 1, Best Possibility: Fast Approval

If the LC is approved quickly, then Mr. Kumar's employer could file an I-140 petition and request premium processing of that petition. If the I-140 is approved before Mr. Kumar's six years ends, he then would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year H1B extensions.

At the time of this writing, Option 1 is realistic in many cases. As reported in our March 18, 2011 article, PERM Processing Times Substantially Reduced (18.Mar.2011), LC processing has become much faster than in the recent past. In some instances LCs are being approved within a few days or weeks of filing, if there is no U.S. Department of Labor audit on the case. This allows such a case to move forward for filing and, hopefully, approval of the I-140 petition.

A variation of Option 1 would be for the LC and I-140 petition to be approved shortly after the end of Mr. Kumar's six years. In this event, he would be able to get three additional years of H1B time if he left the United States at the end of his six years or changed to another nonimmigrant status, such as H-4, in the interim and remained in the U.S. It is safest to discuss these options with a knowledgeable lawyer to ensure that there is a clear understanding of the options and risks. The U.S. employer would likely have to be involved in these discussions as well.

Option 2: Recapture of H1B Time

The six-year limit for H1B status is only counted against time spent in the United States. Thus, if an individual has spent time abroad during the six-year period, s/he can recapture that time abroad.

In our example, if Mr. Kumar spent enough time abroad, he could qualify for an extension of his H1B on that basis. This may be enough to bridge the gap between his six-year expiration and the 365-day point.

Option 3: Leave the U.S. and Return After the 365-Day Point

In our example, there is a gap between the expiration of the six years in H1B status (January 4, 2012) and the 365-day point (May 4, 2012). One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one-year H1B after the LC reaches the 365-day point. Thus, Mr. Kumar would have to spend January 4 - May 4, 2012 outside of the U.S., but he would be able to return in H1B status after the 4th of May 2012 for one year. He would be eligible for further H1B extensions, as long as his green card case remains in process. This is often a workable option for positions that can be performed remotely, or for employers with offices outside the United States.

This option can be combined with the recapture provisions to minimize the time spent abroad. Using this option does not make the individual subject to the H1B cap or lottery. The ability to obtain a seventh-year H1B from abroad was covered in our NewsFlash, USCIS Memo on H and L Timing & H1B/H4 Decoupling (20.Dec.2006).

Option 4: Dependent Status

Some of those reaching the end of their six years in H1B status may be able to change to dependent statuses through their respective spouses. Under the decoupling memo, referenced above, the time in H1B status does not limit eligibility for time in H-4 status. Of course, employment is not possible in H-4 status.

If one happens to be married to an L-1 principal, however, then the status of L-2 spouse would be a good option, as this allows for employment authorization. If one's spouse is also the beneficiary of a green card case, this may provide options if the application for adjustment of status (I-485) can be filed. The I-485 filing would permit the applicant to obtain an employment authorization document (EAD), although it does not provide a way to extend the H1B status of a derivative (dependent) spouse.

In our example, Mr. Kumar might be able to change to H-4 status between January 4th and May 4th, 2012. The employer would have to be willing to continue to offer the position to him for the future and continue to support his green card case. Mr. Kumar would then be able to revert to H1B once 365 days elapsed since the filing of the LC. This timeframe could be reduced by any time available for recapture. The H1B petition filed on this basis would not be subject to the H1B cap.

Conclusion

The scenarios described here should help provide MurthyDotCom and MurthyBulletin readers with clarity on this matter as to who may qualify. As each case is different, it is important to analyze your particular situation carefully and discuss the available options with a knowledgeable and experienced immigration lawyer.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.

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