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  • Labor Application requirement

    Hi,

    Is there a minimum time that one needs to work for a employer before applying for the GC labor processing?
    If one joins the company in Oct 2007, can one apply for the labor processing in Nov 2007?

    Thanks

  • #2
    Hi,

    Is there a minimum time that one needs to work for a employer before applying for the GC labor processing?
    If one joins the company in Oct 2007, can one apply for the labor processing in Nov 2007?

    Thanks

    Comment


    • #3
      It's assumed that the alien is an H-1B worker because of the October 2007 start date. Nothing in the regulations prevents it even if the Alien Employment Certification process (Laborcert/PERM) is started by the employer for the same alien as early as in October 2007, the exact H-1B work start date. In fact, even before then, because it's the employer that's seeking a certification from the Department of Labor of a vacant job where no US worker could be found to fill it up, but the alien could. But then, the key question is not the "length of time that the alien worked for employer before the process could be started," but it's if the alien and employer's "relationship" will last until the alien becomes a green card holder. I say this because the employment-based permanent residency route is multi-leveled, multi-faceted, very time-consuming, and more expensive compared to other immigration options.

      Comment


      • #4
        Hi,

        Thanks a lot for your response. Actually I got my H1 in 2006. It is valid up to Sept 2008. I have few questions.

        1. I came us to USA in Mar 2003 through L1 and converted it to H1 in Oct 2006. Without applying for Labor can I extend the visa up to Mar 2009 (it will be 6 years by then)?

        2. I am planning to move to a new employer and then start my GC processing. Would it be too late if I switch in say July 2008 (due to personal reasons)?

        3. My current employer (H1 sponsor) included clauses like that I should pay 10K if I quit before 1 year and pay 40K if I join my client within a year of termination of the contract. I was not aware of these things when I applied for H1 through him. I had no choice but to sign the offer letter - it was too late when I realized it.

        Is there any way I can file a case or take legal action and nullify these clauses?

        Thanks a lot for your help.

        Comment


        • #5
          <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">1. I came us to USA in Mar 2003 through L1 and converted it to H1 in Oct 2006. Without applying for Labor can I extend the visa up to Mar 2009 (it will be 6 years by then)? </div></BLOCKQUOTE>

          Sorry... In the first point the date is different.

          1. I came us to USA in MAR 2004 through L1 and converted it to H1 in Oct 2006. Without applying for Labor can I extend the visa up to Mar 2010 (it will be 6 years by then)?

          Comment


          • #6
            Q1. Yes, you can do that. A filed Laborcert/PERM, not later than your 5th H-1B anniversary, is only a prerequisite so you could extend your status 'beyond' the 6th year limit (per AC21 Act of 2000). And if you're an H-1B worker since October 2006, your 6th year should be until September 30, 2012. It's six years under the H-1B status, your L-1(A/B) stay is not included.

            Q2. Two things: what's allowed by the regulations and what's good for you. H-1B portability is allowed for you until September 29, 2012 as long as you're eligible to extend beyond your 6th year limit (see above). But if you move as soon as possible and start your Laborcert/PERM process, you may have a shorter path to permanent residency without having to extend your H-1B status any longer.

            Q3. Wow! Once you signed off the bottomline of an agreement, you're legally bound by all its provisions, something that you cannot simply recant afterwards.

            (Just an opinion - take it or leave it).

            Comment


            • #7
              Hi,

              Thanks a lot for your response.

              Can you please confirm that my L1 time does not add up to the H1 6 years time?

              In one of the websites it says it adds up.

              http://www.murthy.com/news/UDh1iii.html

              <span class="ev_code_BLUE">The maximum duration of stay in H status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of these statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.</span>

              Comment


              • #8
                The law firm that's cited is one of the most respected institutions in immigration law practice. But truth be told, immigration laws and statutes of today are lumped up together in a discordant aggregate of patchworks upon patchworks borne out of ever-changing politics of the time. The H-1B visa itself (since IRCA of 1990 / INA of 1952 established the H-1 program) has seen various love-hate sentiments from all sides. L-1 was introduced in 1970. Now, attaching together the L and H to count against the cumulative six-year stay of an alien is a matter of opinion. Except perhaps by virtue of the "L-1 Visa and H-1B Visa Reform Act of 2004." But still, this Act is silent on the cumulation of stay. In fact, it provided more on how the aliens' stays could be extended "beyond" statutory limitations. "When the law doesn't qualify, don't qualify." I may be wrong, but I have first-hand knowledge of successful cases to back up my opinion.

                Comment


                • #9
                  Thanks a lot of responses...

                  Comment


                  • #10
                    Thanks a lot for your responses...

                    Comment


                    • #11
                      <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Rough Neighbor:
                      Q1. Yes, you can do that. A filed Laborcert/PERM, not later than your 5th H-1B anniversary, is only a prerequisite so you could extend your status 'beyond' the 6th year limit (per AC21 Act of 2000). And if you're an H-1B worker since October 2006, your 6th year should be until September 30, 2012. It's six years under the H-1B status, your L-1(A/B) stay is not included.. </div></BLOCKQUOTE>

                      This is not correct. Irrespective of your L1 / H1, your continuous stay can be only for 6 years combined together, unless and until you have a pending application to immigrate. Without any such petitions, you can extend only up to Mar 2009.

                      If your I-140 is approved and your country's priority date is retrogressed, you can request USCIS to extend your H1/L1 for 3 years.

                      Thanks

                      Comment


                      • #12
                        <BLOCKQUOTE class="ip-ubbcode-quote"><div class="ip-ubbcode-quote-title">quote:</div><div class="ip-ubbcode-quote-content">Originally posted by Rough Neighbor:
                        The law firm that's cited is one of the most respected institutions in immigration law practice. But truth be told, immigration laws and statutes of today are lumped up together in a discordant aggregate of patchworks upon patchworks borne out of ever-changing politics of the time. The H-1B visa itself (since IRCA of 1990 / INA of 1952 established the H-1 program) has seen various love-hate sentiments from all sides. L-1 was introduced in 1970. Now, attaching together the L and H to count against the cumulative six-year stay of an alien is a matter of opinion. Except perhaps by virtue of the "L-1 Visa and H-1B Visa Reform Act of 2004." But still, this Act is silent on the cumulation of stay. In fact, it provided more on how the aliens' stays could be extended "beyond" statutory limitations. "When the law doesn't qualify, don't qualify." I may be wrong, but I have first-hand knowledge of successful cases to back up my opinion. </div></BLOCKQUOTE>

                        This sounds interesting. The cases I heard so far is that both H1 / L1 times are lumped together in calculating the 6 year stay. This is what I was also told by my attorney too. I am currently looking for the rule / law regarding this and will post it, if I find one.

                        Can you provide some cases where it is extended beyond 6 years without lumping the time utilized in H1 & L1 ?

                        Thanks

                        Comment


                        • #13
                          Anyway, I said: I may be wrong, didn't I?

                          Rule is rule and that's OK. I have no problem with that. I'm talking about the exception. But as a general rule, immigration regulations are neither written in stone nor seared onto black and white templates - it's almost always inevitable to have shades of gray here and there.

                          Because you haven't done doesn't mean it couldn't happen. Try and you'll be amazed just how in this PERM day and age (since March 28, 2005), DOL/USCIS have somewhat lifted the iron curtain probably haunted by the trauma of the seven-year-old backlog of TR/RIR cases (that was cleared just recently).

                          The OP has already signed off on this thread. You say no, I say yes. Let's leave it there...... (a repost).

                          Comment

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