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Transfer H1 Validity I140 Mtr Denied - Urgent

Discussion in 'Nonimmigrant Visa Validity' started by Xhris, Feb 28, 2016.

  1. Xhris

    Xhris New Member

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    My 7th year h1b extension is approved and received I797 valid until 1/26/2017. I140 MTR is denied.

    I want to know what are my realistic chances to transfer my H1b to different employer until the current validity period(1/26/2017).

    Please advice.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If the I-140 has been denied, you are not going to be able to establish eligibility for an extension beyond six years.
     
  3. Santy

    Santy Guru

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    With all respect to Ron...
    Couple of suggestions:
    1. Try to file a new perm with the same company. I know it will be hard to convince them.
    2. Try to file a new perm with a different company, easier said than done though.
    Your H1 validity remains the same unless you opt and get lucky with either or both of these two options.

    HTH.
     
  4. Xhris

    Xhris New Member

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    Thanks Ron.

    I am assuming by extension you also mean transfer. The reason I mention transfer is because I already have an extension till Jan 2017, so was wondering if the transfer could happen based on the approved extension.
     
  5. Xhris

    Xhris New Member

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    HTH.[/QUOTE]
    Thanks Ron.

    I am assuming by extension you also mean transfer. The reason I mention transfer is because I already have an extension till Jan 2017, so was wondering if the transfer could happen based on the approved extension.
     
  6. Xhris

    Xhris New Member

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    Thanks Santy,

    I do have a second perm with the current company but its not 365 days yet since they applied.
     
  7. Santy

    Santy Guru

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    Well I am happy for you... When did you file it? I hope your lc gets approved before your H1 expiration. I am seeing perms getting cleared within 6 months now, no guarantee though.
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If you want to transfer to another company, that will involve a new H1B petition. As part of that petition, you must show that you are presently exempt from the six year limit. The applicable law provides:

    §106. SPECIAL PROVISIONS IN CASES OF LENGTHY ADJUDICATIONS.

    (a) EXEMPTION FROM LIMITATION- The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of that Act on whose behalf a petition under section 204(b) of that Act to accord the alien immigrant status under section 203(b) of that Act, or an application for adjustment of status under section 245 of that Act to accord the alien status under such section 203(b), has been filed, if 365 days or more have elapsed since--

    (1) the filing of a labor certification application on the alien's behalf (if such certification is required for the alien to obtain status under such section 203(b)); or

    (2) the filing of the petition under such section 204(b).
    This was modified in 2005 as part of the Real ID Act:

    Sec. 106--Special Provisions in Cases of Lengthy Adjudications.
    (a) Exemption from limitation--The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8 U.S.C. 1184(g)(4)) with respect to the duration of authorized stay shall not apply to any nonimmigrant alien previously issued a visa or otherwise provided nonimmigrant status under section 101(a)(15)(H)(i)(b) of such Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), if 365 days or more have elapsed since the filing of any of the following:

    (1) Any application for labor certification under section 212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)), in a case in which certification is required or used by the alien to obtain status under section 203(b) of such Act (8 U.S.C. 1153(b)).

    (2) A petition described in section 204(b) of such Act (3 U. S.C. 1154(b)) to accord the alien a status under section 203(b) of such Act.".

    (b) Extension of H-1B worker status--The Attorney General shall extend the stay of an alien who qualifies for an exemption under subsection (a) in one-year increments until such time as a final decision is made--

    "(1) to deny the application described in subsection (a)(1), or, in a case in which such application is granted, to deny a petition described in subsection (a)(2) filed on behalf of the alien pursuant to such grant;

    "(2) to deny the petition described in subsection (a)(2); or

    "(3) to grant or deny the alien’s application for an immigrant visa or for adjustment of status to that of an alien lawfully admitted for permanent residence.".


     

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