AAO Appeal Denied on I-140. 4 months left on 7th year H-1b

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Before my 7'th Year H-1B was approved, we received I-140 denial letter from USCIS. The lawyer made a mistake where he didn't specify in 9089 (?) form that this job requires Master's degree. My H-1B was approved, after RFE and based on the appeal pending with AAO for I-140 denial.

We have now received the decision from AAO that the I-140 application will still remain denied. I don't know more details other than the denial.

Lawyer is saying he will do a couple of things.

1. Appeal again and use that appeal to extend the stay beyond the 7'th year for another year.

2. Apply for EB-3

Q1. In case 1, I don't know if you can re-appeal AAO and even if you are able to do that (in federal court?), can that be used to extend the stay beyond the 7'th year?

In case 2, there isn't a lot of time left to go through process of advertising, recruitment and PERM approval. I don't think my PERM will be approved within next 4 months. However the lawyer wants to buy the time, possibly as follows (not his words, but my guess)

Q2. If at the 4'th month, lawyer applies for H-1B extension without any I-140 or PERM pending for > 1 year and take the chance that we'll get PERM approved before USCIS sends an RFE requesting I-140 and submit premium processed I-140, will the USCIS approve the extension ? 

Q3. Shall I start packing my bags 😄


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  • 2 weeks later...

Case 2 is simply trying to game the system. USCIS obviously has a record of when the PERM and I-40 was applied. They will ask for proof of legal status between the last day of 7th year H1-B and the date  when you could by law apply for a H1-B extension (which is after I-140 approval). Just filing the H1-B extension won't get you around the status gap.

Also, just advertising and applying for PERM will take 4-5 months atleast. Add to it PERM processing time which is another 4-6 months (more if there is an audit).

The best bet would be to leave when the current H1-B expires, apply for PERM asap, and then apply for H1-B extension based on 365 day pending PERM or approved I-140 (whichever comes first) while being outside the country.


Edited by Ken7
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