Labor approved, I140 pending >1yr, Can I get 1 yr H1B extension


vivek_29

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Hello,

 

Background

My original I-140 application (I will call this Application A) was rejected in an around March 2013.

On April 1st 2013 (15 days later), a new I40 application (I will call this Application B) was submitted without the labor certificate.

In application B, it was stated that we don’t have the original Labor Certificate and we would like to use the one that was submitted with Application A (this is allowed).

Application B is pending decision since April 2013.

 

Question

Since my 6th year will expire on the 14th of December 2014, Will I be eligible for one year extension based on Application B (provided USCIS decision remain pending)? 

 

Note: According to my company's attorney, I will not be eligible because according to him:

 

An extension beyond the 6th year can only be applied for

1) if there is a labor certification pending for at least 365 days, or an I-140 approved, or

2)  if there is an I-140 pending for 365 days and that I-140 is not based on a labor certification (e.g. NIW I-140). 

 

I am confused because i see few blogs that talk about similar situation but none of those blogs mention what happened in those specific cases.

 

 

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