Filing Labor Certifications during Sixth Year of H1B
Posted Mar 06, 2009
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We at the Murthy Law Firm receive many questions asking whether it is too late for an employer to file a labor certification (LC). These questions generally come from individuals who are approaching or are already in the sixth year of their H1B status. With the economy delaying for many the ability to file LCs, this is a matter of increasing concern. 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 labor certification can be filed at any time. The questions surround possible options for the individual at the end of six years in H1B status in the United States. MurthyDotCom and MurthyBulletin readers who are dealing with this situation may find some of the following hints helpful.
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Clarification of the H1B Six-Year Rule
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As most MurthyDotCom and MurthyBulletin readers know, the standard allowable time in the U.S. in H1B status is six years. 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 a labor certification filing made 365 days prior (or I-140 for those cases that do not need the labor filing); or (b) the labor and I-140 must be approved, with no visa number (based upon the priority date) available.
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The first rule, known as the 365-day rule, is predictable. Generally, it is recommended that the employer file the labor certification 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 labor certification cannot be filed 365 days before the end of the sixth year.
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Labor Certifications may be Filed Anytime
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As explained above, 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 a labor certification. 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.
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Options if Labor Filed in Sixth Year
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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.
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Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends on January 4, 2010. His company is going to file his labor certification on May 4, 2009.
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In this example, Mr. Kumar’s six years will end before his labor will be a year old. The possibilities are as follows.
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Option 1, Best Possibility : Fast Approval 
If the labor certification happened to be approved in six or seven months, then Mr. Kumar’s employer could file an I-140 petition and request premium processing of that petition, as allowed under current rules for limited availability of I-140 premium processing. If the I-140 is approved before Mr. Kumar’s six years ends, then he would be eligible for a three-year extension of his H1B status based on the AC21 rule permitting three-year extensions.
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A variation of this would be for the labor certification and I-140 petition to be approved shortly after the end of Mr. Kumar’s six years. In this event, Mr. Kumar would be able to get three additional years of H1B time. This could be done even if he had left the U.S. at the end of his six years, or had changed to another nonimmigrant status such as an H-4 in the interim and remained in the United States. It is safest to discuss these options with a knowledgeable lawyer to ensure that there is a clear understanding of the options and risks.
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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. 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.
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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 on H1B (January 4, 2010) and the 365-day point (May 4, 2010). One option, if the employer agrees, is to leave the U.S. at the end of the six years and return on a one-year H1B after the labor reaches the 365-day point. Thus, Mr. Kumar would have to spend the time between January 4th and May 4th outside of the U.S., but he could return thereafter in H1B status for one year. He would be eligible for further 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.
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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 from December 20, 2006, USCIS Memo on H and L Timing & H1B/H4 Decoupling.
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Option 4 : Dependant Status
Some of those reaching the end of their six years in H1B status may be able to change to dependant 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. It does not provide a way to extend one's H1B status.
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In our example, Mr. Kumar might be able to change to H-4 between January 4th and May 4th. The employer would have to be willing to continue to offer his position to him for the future and continue to support his green card case. Mr. Kumar would then be able to revert to H1B at the 365-day point. This timeframe could be reduced by any available time for recapture.
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Conclusion
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The scenarios described should help provide clarity on this matter to MurthyDotCom and MurthyBulletin readers 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.