Is it approvable and why?

[immiq]

Is there any expert can explain the following question? An H-1B has changed a job during his 7th year H-1B but has an approved or pending LC filed 365+ days already. The employment relationship no longer exits between the beneficiary and that LC sponsoring employer. No I-140 is filed. Is it approvable if this H-1B request the 8th year H-1B extension from other employer with a new LC filed less than 365 days and why?

 

[ImmigAttyLana]

I thought we had already covered this very point here in another post by you. The regulations state that as long as A labor certification application is filed on your behalf at least 365 days prior to your H-1B final expiration, then you are eligible for extensions of stay in H-1B status in one year increments.

 

[immiq]

I thought we had already covered this very point here in another post by you. The regulations state that as long as A labor certification application is filed on your behalf at least 365 days prior to your H-1B final expiration, then you are eligible for extensions of stay in H-1B status in one year increments.

But I did not see an answer how to respond to the USCIS inquiry why no I-140 filed or whether the employment relationship still exits if the beneficiary uses the old company’s approved or pending LC to request the 8th year H-1B extension from a new employer with a new LC filed less than 365 days. If it is, it seems the post 6 years H-1B can be extended year-by-year indefinitely from any employers regardless of I-140, I-485 filed or not. The only condition is to file a new LC after joining a new company. Does it work? Can you explain it?

 

[ImmigAttyLana]

Are you asking a hypothetical question or have YOU been asked SPECIFICALLY in regard to your petition whether the employment relationship still exists between you and the employer that has filed the original labor certification application on your behalf?

 

[immiq]

Are you asking a hypothetical question or have YOU been asked SPECIFICALLY in regard to your petition whether the employment relationship still exists between you and the employer that has filed the original labor certification application on your behalf?

It is not a hypothetical question. I have already seen a report that the CIS inquired why no I-140 filed when a person used an approved LC to request post H-1B extension from the different employer. Also, I have found a different answer from another attorney forum. * I think if there is no intent to work for the sponsor it is fraud to say that the intent exists. As a practical matter, when an employee with an approved LC leaves the company usually wants to use the LC for another employee. Therefore that LC is no longer for the first employee and no EOS is possible beyond six years. * Maybe the issue is not easy to resolve. Anyway, it has a risk to do 7th year H-1B transfer unless the beneficiary will back to that LC sponsoring employer.