H1B extension after 6 years if labor was filed within one year of H1B expiry date

[suraj225]

Dear All,

I have a little complicated situation. My 6 years on my H1B will expire after April 29, 2012. My employer has missed the 1 year deadline for filing the labor and applied in July 2011 instead of applying before April 29, 2011. There was an audit on my labor in September 2011 and the case is still pending. So I don't have an approved labor yet. Since my labor was filed in July 2011 and the labor is not approved yet, my H1B cannot be extended and I need to leave the country by April 29, 2012.

The good news is, my company is transferring me to it's Canadian office temporarily until my labor and I-140 are approved.

My questions are:

1. Even though my labor has been filed within one year of my H1B expiry, if my labor and I-140 gets approved while I am in Canada, would I be able to get an extension on my H1B?

2. The HR people are saying I need to move to Canada in February itself even though I still have time on my H1B until April 29, 2012. Their reason is, they would like to move me to Canada in advance so that they can capture the remainder of the time on my H1B while applying for an extension. I am little confused here. Do they mean, since my labor was filed in July instead of April of 2011, they would like to capture my time that I have spent outside USA before April 29, 2012 to push back the one year deadline to July 2011 from April 29, 2011. If this is true, do I really need to establish that my labor was filed one year before my max expiry date on H1B (now with the captured time it will be July 2012) even though I plan on applying for a H1B extension only after my labor and I-140 are approved?

Greatly appreciate your responses!

Thanks!

[noauditplz]

1.Yes Once your I140 you can H1B extension for 3 yrs. you are not eligible for 1 yr extension based on labor as the deadline is missed

2. Your HR is talking about capturing time from Februrary to April of this year and thats why they want you to move to canada immediately and it is not going to have affect on your labor processing. this time can be captured only when your H1B is filed after your I140 is approved