I140 approval after sixth year H1b expiry

[vk.2019]

Hi,
I’m in the 6th year of my H1b visa, which expires in October 2019. My employer is filing PERM but probably my I-140 will not be approved by October 2019. If I leave the US AFTER my H1b expires in October and wait until I-140 is approved, can my employer file for H1b extension based on approved I140? Will this be cap exempt? Or will I need to go through lottery?

 

Alternatively, would it be advisable to leave the US BEFORE my H1b visa expires and wait for I-140 approval? Can I then get H1b visa extended based on approved I-140?

Thanks in advance for help!!

[rara5]

There is a possibility that even your PERM will not be approved before Oct 2019, if it is audited.

There are two senarios:

1) As you assume, your PERM gets approved but your I-140 doesn't prior to Oct, 2019.

You should leave the country latest by the date your current H1-B expired. When your I-140 s approved, the company files for a 3-year extension, and on approval you can re-enter the country. This will be cap-exempt.

2) Your PERM is audited and not approved by Oct 2019.

You leave the country by the date of your current H1B expiry. You wait for the PERM and I-140 to get approved and then similar to above. Alternatively if the PERM takes a long time (more than 365 days from date of applying) to get approved, then at the 365 days point, company can apply for a 1-year extension based on pending PERM and once approved you can re-enter and then apply for 3-year extension when the PERM and I-140 get approved.

In all scenarios it will be cap-exempt. But you should not exceed your stay in the country past your current H1-b expiry.