1/17/2006

The DOJ Appropriation Authorization Act amended the AC 21 H-1B 7th-year extension provision by providing that such extension will be available until there is a "final" decision of the labor certification application or petition. 

The denial of an application or a petition is not final if the decision of the denial is appealed and pending. This is confirmed by the USCIS sources. Accordingly, those who need extensions beyond H-1B six-year limit and whose application or petition is pending more than 365 days before reaching H-1B six-year limit should file appeal of the denial of the labor certification applications. 

If their labor certification was approved but I-140 is denied, such USCIS denial decision may also be appealed to the AAO. Caveat: Those who have a potential 3-year bar or 10-year bar issue should not consider such appeal if such appeal will run unlawful presence for 180 days or more pending the appeal since the administrative appeal does not toll running of unlawful presence time.