It's here.
The lawyer made the following claim:
Nonimmigrants are prohibited from remaining in H1B status longer than six years. The CIS recently revised their interpretation of the six year limit to exclude time spent outside the US. Still, there is a core six year limit.
The AC21 legislation provided for an exemption from this six year limit if either of two conditions can be shown:
- The nonimmigrant is the beneficiary of a foreign labor certification application or I-140 employment based immigrant petition filed prior to the end of the beneficiary’s fifth full year in H1B status; or,
- The nonimmigrant is the beneficiary of an approved I-140 petition.
These two exemptions are limited, however. If the labor certification is denied, then the nonimmigrant loses the exemption – even if previously granted. If the labor certification is approved, but the I-140 is denied, then the nonimmigrant loses the exemption – again, even if previously granted. Finally, if the nonimmigrant applies for adjustment of status, and the AOS application is denied, then the nonimmigrant loses the exemption – even if previously granted.
It is very clear that if an application for adjustment of status is denied, the applicant may not use the underlying labor certification or I-140 as a basis for seeking an exemption from the six year limit on remaining in the US in H status. I quoted the specific language on this in the first post in this thread. If you don’t recall it, go back and read it again.
If an unsuccessful AOS applicant loses his or her exemption from the six year limit on remaining in the US in H1B status, and they have accumulated more than six years in H1B status up to that point, it is clear that they are not entitled to remain in H status following their AOS denial. Let’s be clear on this. The basic rule prohibits someone from remaining in the US for more than six years in H1B status unless they have an exemption. If they lose the exemption, there is no legal basis for them to remain in the US in H1B status. Now, if you disagree with this, I’d be very interested in seeing your legal authority.
If you lose your exemption, and you have used up six years in H1B status, there is no legal basis for you to claim that you may remain as an H1B.
