EB1/NIW pending and Extending H1B beyond 7 years

[Indo American]

I am currently in my 6th year of H1B visa and my application for my EB1 and NIW is pending (it was filed 365 days before the expiration of my H1B visa). I have already received a RFE, to which I have responded and awaiting their review (it is past 60 days; I called the USCIS asking them about the status of my application as I was very apprehensive--shouldn't have done that). I am a doctor who is currently being trained in Cardiology (fellowship). Have 5 publications, lots of published abstracts, few oral presentations in prestigious meetings, authors of book chapters and web chapters, editors for online medical websites, journal reviewer, physician editor, awards, critical roles in my institution, have been accepted to start interventional cardiology training (for one year, which will be my 7th year of H1B) in a prestigious institution, 6 letters from IV league institutions. The only way I can do this one year of interventional cardiology training is by getting a 7th year of H1B visa or having my EB1 or NIW approved.

My questions are:
1) If my RFE review for EB1 and NIW are rejected, can I apply for a re-appeal (against the decision) or motion to re-open (MTR) and then try and apply or my H1B visa extension (as I have an I-140 application pending). How long do they usually take to respond on the re-appeal or MTR?
2) If my EB1/NIW is rejected, I plan to convince a employer to sponsor a EB2 (i.e., labor certification) under premium processing. Can I apply for a H1visa extension with a labor certification pending (which would have been filed less than 365 days) or should it have been filed >365 days or should I have the labor certification or I-140 approved.

Please advise.

Thanks a lot.

[katzie19]

I am not sure if I can answer both the questions you have asked, but the same thing happened to me. Atleast will try and answer the visa question. I filed for EB1/EB2 in my 6th year, was asked for RFE and the application was rejected in the end. I am in neurosurgery. My lawyer suggested appealing the decision and simultaneously H1 renewal was sent. I have been granted a year of H1 and my appeal is still pending. All I see is a tenuous road ahead and is by any chance your lawyer the 'New York' based one????

[Indo American]

I am not sure if I can answer both the questions you have asked, but the same thing happened to me. Atleast will try and answer the visa question. I filed for EB1/EB2 in my 6th year, was asked for RFE and the application was rejected in the end. I am in neurosurgery. My lawyer suggested appealing the decision and simultaneously H1 renewal was sent. I have been granted a year of H1 and my appeal is still pending. All I see is a tenuous road ahead and is by any chance your lawyer the 'New York' based one????

You are right. My lawyer is SJ form New York. How do you proceed after the 7th year. Considering that the appeal will be turned down on most occasions, do we look for a prospective employer at the end of the 6th year to file a labor certification and eventually an employer sponsored EB2. What is your strategy?

[katzie19]

You are right. My lawyer is SJ form New York. How do you proceed after the 7th year. Considering that the appeal will be turned down on most occasions, do we look for a prospective employer at the end of the 6th year to file a labor certification and eventually an employer sponsored EB2. What is your strategy?

Looks like the only option left is getting somebody to file a GC for us, as you mentioned previously. Not sure if it would be EB1 or EB2 though! If we opt for J1, waiver would take 2 years, so that would be a bad option. I have been advised to change my lawyer next time I decide to apply for GC, thats an option I am looking at, as I know quite a few people who have applied through SJ and have been unsuccessful in getting GC quickly. What are your plans???

[africanqueen]

Looks like the only option left is getting somebody to file a GC for us, as you mentioned previously. Not sure if it would be EB1 or EB2 though! If we opt for J1, waiver would take 2 years, so that would be a bad option. I have been advised to change my lawyer next time I decide to apply for GC, thats an option I am looking at, as I know quite a few people who have applied through SJ and have been unsuccessful in getting GC quickly. What are your plans???

Hi, interested in knowing the result of your predicament and what you ended up doing. My husband is in a similar position at the moment - and we are not sure of next steps. He has submitted an appeal for the i-i40 eb1 visa 4 months ago, and is on 6th year of h1b. Thanks.