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PERM on audit and H1B is expiring soon

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Dear friends,

My perm was filed in Jan 2018 (priority date) and my H1B  6 yrs is completing by Oct 2018. Now we received an email that its selected for an audit. Can you please let me know what are my options for extending my stay beyond Oct 2018. 

Thank you.

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Not too many options, but fortunately you don't have much of a gap. The audit will take 9-10 months to clear after you respond, which means your PERM should come through sometime in summer/fall of 2019. Since in Jan 2019 you will exceed 365 days of pending PERM, you can apply for 1-year H1 B extension then. So essentially you need to try to be in status between October 2018 to Jan 2019. The only way to do that is to recapture any H1 B time when you have travelled out of the country. If you don't have 3-4 months of recapture time, then I would suggest, travelling/going on vacation now, coming back prior to oct 2018 and applying for recapture time. If you still don't have enough to cover that gap, then you would have to leave the country for that period, and while in your home country, the lawyers can apply for the 1-year extension for pending PERM in Jan 2019 and once approved you can return (will need to get re-stamped).

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Similar situation, Filed for PERM in Jan 2018, and my H1B is expiring in July, we got the audit confirmation last friday. Looks like I have to leave the country as I'm in 6th year of H1B and there is no recapture time. If the PERM audit and approval takes more than a year will my H1B reset again to 6years? What options I have in current situation. Please suggest.

Also my employer is OK with me working from India during this time, how should I be paid in that case? as legally my employment in US should end in July. Need some info on this.

 

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To reset H1b and get new 6 years, you have to stay out of the country for an year and then apply for a fresh H1B under the cap. Not the most ideal alternative.

If there is no recapture time, then you will have to leave in July. In Jan 2019, the company can apply for a 1-year H1B extension based on pending perm. If done in premium processing, you could likely come back in Jan/Feb 2019 (after getting approval and stamping). After perm clears, I-140 can be applied in premium and once approved, 3-year  H1-B extension can be filed.

The good news is you can continue working in India after July. Not sure what the rules are in terms of payroll since you won't be on H1 status. Logically, I would think the company would have to terminate your employment (since H1 expires) and then get you back on the payroll on a different category (do they have international offices?). The company lawyer should be able to answer this and/or you should consult with a personal lawyer as well.

 

 

 

 

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On 6/26/2018 at 7:03 AM, Ken7 said:

To reset H1b and get new 6 years, you have to stay out of the country for an year and then apply for a fresh H1B under the cap. Not the most ideal alternative.

If there is no recapture time, then you will have to leave in July. In Jan 2019, the company can apply for a 1-year H1B extension based on pending perm. If done in premium processing, you could likely come back in Jan/Feb 2019 (after getting approval and stamping). After perm clears, I-140 can be applied in premium and once approved, 3-year  H1-B extension can be filed.

The good news is you can continue working in India after July. Not sure what the rules are in terms of payroll since you won't be on H1 status. Logically, I would think the company would have to terminate your employment (since H1 expires) and then get you back on the payroll on a different category (do they have international offices?). The company lawyer should be able to answer this and/or you should consult with a personal lawyer as well.

 

 

 

 

Hi, thanks for the info, based on the reply above even if the PERM is still in process in January 2019 my employer can file a 1 year extension, please confirm this? 

Also I was told that i will be paid in US during my stay in India, is that fine. Will that have any effect in the future with PERM or H1B extensions.

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Yes, after 365 days of pending PERM, meaning you haven't received a decision on the PERM after 1-year of the filing date, you can file for a 1-year H1-B extension based on the pending PERM status. And you don't have to be in the country for it.

Again, I'm not sure about the payroll workings. Best to talk with HR and the company lawyer. As long as you aren't in the country and not on H1-B, it should not affect any future or current filings.

 

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