Dr. William:

My I-140 application was denied. Since I am close to the 6-year H-1B time limit, I need to use AC-21 for H-1B extension of another year. What I should do? to appeal the I-140 denial to AAO or refile I-140? or I can do both?

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Answer:

USCIS will allow the petitioner to refile I-140 petition when the denial of I-140 has been appealed and pending before the AAO. However, such refiled I-140 petition will be held in abeyance pending the decision of the AAO for the appealed I-140 petition. It advises that in order to seek the adjudication of the refiled I-140 petition, the petitioner must withdraw the pending AAO appeal.

However, you need to understand that there are many benefits attached to the pending AAO appeal, which will be wiped out once the appeal is withdrawn. Such benefits include the the USCIS decision of denial is considered "not final", and AC-21 extension of H-1B nonimmigrant status even beyond the six-year limit.