I-140 Premium not accepted even if 6 years will be endng in 60 days

[sandeep_jha]

Hi,

I will complete my 6 years on H1 in Oct 2008 and my current I797 and I-94 is valid till May 2009. My Lawyer applied for I-140 in premium mode as I will be completing my 6 years within 60 days, but USCIS notified the lawyer that they are processing the I-140 in regular mode as my current I797 is expiring in May 2009 and I will be able to upgrade to premium only in Mar 2009. My Lawyer did submit all my arrival departure record which adds upto 6 year by Oct 2008.

So does this mean that USCIS is saying that I can stay here till May 2009 as they have already issued me the I797 till that time.

I-40 Premium eligibility is

1) Are currently in H-1B nonimmigrant status;
2) Will reach the 6th year of their H-1B nonimmigrant stay in 60 days;
3) Are only eligible for a further H-1B extension under AC21 §104(c)2 upon approval of their Form I-140 petition; and
4) Are ineligible to extend their H-1B status under AC21 §106(a)3.

Please let me know if USCIS has done some mistake by not accepting my I-140 in premium mode and Ineed to ask my lawyer to talk to them or is it safe to assume that they ase okay with me staying here till May 2009.

Thanks,
Sandeep

[txh1b]

The lawyer should have done a better job of documenting your 6 years stay. You cannot stay past 6 years if USCIS erroneously approved the I797 past 6 years if you dont have a pending labor for more than 365 days before the 6 years expire or the I140 is approved.

Talk to your lawyer or get a better lawyer.