HOT TOPICS ¨C Priority Dates a

By: Beth Robertie, Associate William R. Yates, Associate Director of Operations for the United States Citizenship and Immigration Services, recently issued a memo addressing various topics in immigration law. Here is a summary of important topics that he addressed: 1. Priority Dates for Employment-Based Form I-140 Petitions The priority date attached to your I-140 is the single most important factor in your immigration case. Determining what the priority date will be has long been a source of confusion for immigrants and practitioners alike. Generally, for an employment-based visa petition supported by a labor certification issued by the Department of Labor, the priority date is the earliest date that the labor certification application was filed. Once the alien¡¯s I-140 application is approved, the alien beneficiary retains the priority date determined by the original Department of Labor filing, even for any future I-140 petitions, such as in the case of a new employer. Please keep in mind, however, that the new employer must obtain a new labor certification if required. If the petition approved for a classification does not require a labor certification, such as for Schedule A or NIW petitions, then the priority date is the date the I-140 petition is filed with USCIS. In essence, the earlier you can get your paperwork in the better, but the priority date will vary based on the kind of petition you are filing. 2. Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition If the alien is otherwise qualified for an extension of H-1B status, and they have had either a labor certification application or an I-140 pending for more than 365 days (measured from the requested start date of the H-1B extension), then they are eligible for an H-1B extension beyond the 6th year. These extensions of stay are granted in one-year increments only until either the labor certification, EB immigrant petition, or application to adjust status is denied, or the application to adjust status is granted. An H-1B holder whose labor certification or I-140 has been pending for less than 365 days at the time of the requested start date of the extension would be ineligible for the extension of H-1B status. This rule also applies where a labor certification has been pending for more than 365 without the filing of an I-140. As such, an alien beneficiary of an approved labor certification application filed at least 365 days ago or one that has been pending for more than 365 days is eligible for up to three one-year H-1B extensions even if they have not yet filed their I-140 petition. Since the PERM process of filing a Labor Certification Application is new, this situation is currently applying to those Labor Certification cases that were filed through the old Labor Certification process-- Reduction in Recruitment (RIR) process. Although we are anticipating a rule change in regard to this matter, at this time once a Labor Certification Application filed through the PERM process has been filed (and, presumably, approved, but not one that has been denied) over 365 days ago (not possible now, but after March 28, 2006) the beneficiary is qualified for H-1B extension in one-year increments beyond the six year maximum, even if an I-140 petition has not yet been filed. At some point in the near future, it is likely that this rule will change in regard to PERM , requiring an I-140 petition to be filed within a certain amount of time after PERM approval. As all immigration matters are unique, should you have any questions on this matter or any other immigration matter, please contact an immigration attorney to assess your case. --------------------------- 本文由范毅禹律师事务所提供 本律师事务所精办各类劳工应聘及专业移民申请 (包括H-1，L-1，EB-1，EB-2，NIW，劳工卡，绿卡等申请)。所有申请由多位美籍律师及拥有15年经验的范毅禹律师亲自处理，我所并特设中英移民网站。内有最新移民新闻资讯及由律师主持的移民问答集，欢迎读者流览查询。 www.Fan-Law.com CALIFORNIA : Fan & Fitzpatrick, P.A. 370 E. Glenarm St., Pasadena , CA 91106 Tel: [phone] Fax: [phone] COLORADO : Fan & Fitzpatrick, P.A. 1763 Franklin Street, Denver, CO 80218 Tel: [phone] Fax: [phone] MARYLAND : Fan & Fitzpatrick, P.A. 230 North Washington Street, Suite 400 , Rockville , MD 20850 Tel: [phone] Fax: [phone]