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One year extension beyond H1B max out period

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USCISs guidelines states:

8 CFR §214.2(h)(13)(iii)(D)(5): Advance Filing. May file for an H-1B extension beyond 6 years within 6 months of the requested start date. May file before 365 days have elapsed as long as the LC or IV petition is filed at least 365 days prior to the date the period of authorization will take effect. May request time remaining in 6 years, including recapture time, at the same time as requesting a 1-year AC21 extension.

Should PERM be filed 365 days before H1B max out period or 365 days before filing for H1B extension? I have 2 years remaining on H1B and claiming extension for third year based on approved PERM (filed October 2019). 

Any help is appreciated.

Thank You

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365 days before maxout date. You can’t claim a 1 year extension based on an approved PERM. The 1 year extension is Allowed when the  PERM is in pending status for 365 days. An approved PERM gets you nothing. You can now only file for an h1b extension ( for 3 years) when your I 140 is approved. You still have 2 years left on the h1, not sure why you are looking to file for any kind of extension now anyway.

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Sorry for not being clear with the scenario. Here is my complete situation.

My current H1B expires in September 2020 and have used 4 years of max 6 years allowed. My lawyers have filed for 3 years extension (2 years of H1B pending + 1 year extension based on approved PERM citing that PERM has been filed 365 days before my H1B max out date).

I got RFE asking to explain 3rd year of extension. My I 140 was approved when H1B extension was pending. Since I 140 was not approved at the time of filing of H1B extension, am I eligible for 3rd year based on approved PERM? or is there a chance where USCIS rejects the application and asks to refile?

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That is clearer, but again you can’t request an additional year based on an approved PERM. Was perm pending for 365 days when the h1b extension was filed? Since I 140 wasn’t approved at the time of H1b filing you can’t claim 3 year extension either.

Not sure how Uscis processes applications, hopefully there is some common sense in the process and based on the RFE response they approve a 2 year extension instead of 3 years and not require refiling  the extension. It wouldn’t be the worst situation if the company had to refile since you now have the I 140 approved.

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While replying to your H1b RFE, please ask your employer/attorney to add a copy of your approved I-140 too and mention it in their covering letter.  Give it your best shot.

Lets see what other experts advise.

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