6th year H1B extension after I-140 revocation


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Hello Friends,

I have been getting mixed answers to this questions. I have 5 months left on my 6th year H1B. My GC processing started 2 years ago and I received my approved I-140 a year ago with priority date of August 31st, 2009. My company plans to layoff people. Considering that my company lays me off and terminates my H1B, labor certification and revokes my I-140. How can I get a 6th year extension?

Looking at the Yates memo it clearly states that an I-140 can be used for portability if it is not withdrawn within 180 days of I-140 approval :

Question 11. When is an I-140 no longer valid for porting purposes?

Answer: An I-140 is no longer valid for porting purposes when:

A. an I-140 is withdrawn before the alien’s I-485 has been pending 180

days, or

B. an I-140 is denied or revoked at any time except when it is revoked

based on a withdrawal that was submitted after an I-485 has been

pending for 180 days.

Still many people insist that if I-140 is revoked then there is no way of getting extension for 6th year.

Here are specific questions I have:

1. If there is no way to get extension for 6th year then this leaves H1B employees at the mercy of the employer during their 6th year of H1B since even though they had their priority dates and an approved I-140 there is not enough time to start a new GC process to extend H1Bs beyond 6th year since their I-140 is revoked.

2. In such a case can the labor certificate be used to get a 1 year extension or can that also be revoked like the I-140 and become unusable for extensions.

3. What does I-485 pending mean? I believe it means that your I-140 has been approved and not that you applied for I-485 which you can only do when your PD becomes current?

4. Most importantly, I am not interested in learning that I should transfer my H1B before changing jobs or getting laid off etc.. I know that with an approved I-140 you can extend your H1B, transfer etc. I am only interested in the situation where the employee is caught off guard where the employer has revoked his I-140

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