Urgent Help - H1B 7th Year PLUS Recapture

[Maani]

Dear Sir/Madam,

I am currently working on H-1B status. My H-1B started on 10/01/2010, which means my 6 years ends on 09/30/2016. But, here is what happened: I worked for employer ‘A’ from 10/01/2010 to 12/31/2012 then I switched to employer ‘B’ and extended my H-1B from 01/01/2013 – 12/31/2015.

On 10/01/2015 employer ‘B’ filed first extension for period 01/01/2016 – 09/30/2016. This extension took very long time, to avoid 240 days rules, I left U.S. for Canada on 08/01/2016 and kept working for my employer remotely and they kept me on payroll. On 09/10/2016 my employer notified me that the petition is approved. But, since I stayed in Canada for more than 30 days I didn’t have the option to enter U.S. by showing I-94 and I didn’t feel appropriate to apply for visa as only few days were left and the chances of denial were really high.

During these 6 years of H-1B I visited my home country for three weeks and then I left U.S. 2 months early to avoid 240 days rule. In total I was not in U.S. for 2 months and 3 weeks of my original 6-year limit.

During all this H-1B stuff was going on, my employer filed PERM which got approved and then they filed I-140 on 12/15/2014. After a year of filing we got RFE and 6 months after answering RFE the I-140 got denied. Our attorney filed a timely appeal and as of today I-140 appeal is still pending and currently I am residing in Canada.

Now you know the background, here is my question:

Can my employer file just ONE petition to recapture time I was not in the U.S. PLUS 7^th year extension under Section 106(a) of AC21 as my I-140 is pending for more than 365 days OR first my employer needs to file a petition to recapture time and then a separate petition for 7^th year extension?  If second option is true, my employer won’t feel comfortable to file petition for less than 3 months and then waste money again for 7^th year extension. But, if the first option is true, what is the latest date we can file petition?