3 months left on H1-B. I140 is pending approval. Can I get H1B extension once I140 is approved?


MOG

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My H1-B capout date is January 31st, 2012. My PERM process was approved in April, 2011. I-140 was originally submitted on September 15th, 2011 (not Premium processed), but then it was submitted with a Premium processing at the end of October, 2011 and it is pending approval at this time. I was told yesterday that since a company's lawyer has overlooked that I am from Russia (how on Earth that could happen?) and the green card process is current for this country, they cannot extend my H1B visa beyond the 6th year on H1B because my PERM process was approved after the 5th year of being on H1B. I was asked if I could leave the US for a few weeks and get back with an H1B visa stamp to have the dates outside the US re-captured for the H1B visa and have enough time for I-485 and EAD card approvals.

Questions:

1) I was always under impression that all is needed is I-140 approved to have H1B visa extended beyond 6 years even if the PERM process was approved after the 5th year of beeing on H1B and regardless of the status of the green card processing (current or not). Was I wrong?

2) Are there other options to not have to leave the US? I haven't travelled outside the US since 2003 because of a possible visa stamp denial, but now they are asking me to do that at the very end of the H1B visa, drastically increasing a risk of not getting a visa stamp outside the US.

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