7th yr extension + PERM pending + will not make to 365 days

[gkraju747]

My H1b 6yrs limit will be over in July30, 2012. My PERM is applied in October 2011 and still pending so it will not be 1 yr by July if it is not approved as I will be 3 months short to get 7th year extension.

I have to leave the US in july if that happens. My question is , even if I return to India, during those 3 months(july-oct) as my PERM will be in pending from my employer in US, can he get me 7th yr extension from Oct 2012 when PERM would have been pending for 1 yr by then, and then send me to stamping and get me back to the US in October 2012 provided I have client letter as well from the same job I have been working???

[kalyan_ac]

Your understanding is correct.

[gkraju747]

thank you so much for your response...this is very imp for me and my family...you said I am correct, so let me please make sure this is what you mean and what I can take from your reply.

"I will leave US on July 30 but my employer will file for 7th yr extension in July(before I leave) with requested start date in Oct 2012 as PERM will be pending for 1yr by then. I will be out of H1 status for about 2 months but I can still be granted an extension from OCT using which I can return. I need not have wait for 1yr and start a new H1 process".

if my above statement in quotes is correct, please kindly reply a YES. thank you so much again.

[chapati]

gkraju747-

Have you captured your time out of country ? If not that could help you in bridging the gap -until Oct 2012.

[kalyan_ac]

thank you so much for your response...this is very imp for me and my family...you said I am correct, so let me please make sure this is what you mean and what I can take from your reply.

"I will leave US on July 30 but my employer will file for 7th yr extension in July(before I leave) with requested start date in Oct 2012 as PERM will be pending for 1yr by then. I will be out of H1 status for about 2 months but I can still be granted an extension from OCT using which I can return. I need not have wait for 1yr and start a new H1 process".

if my above statement in quotes is correct, please kindly reply a YES. thank you so much again.

If you are not in US, then you do not have any status.So you are never out of status.

YES.

As the other poster pointed out, have you already recaptured your time in vacation etc from the past 6 years?

[gkraju747]

yes, I have recaptured time outside US and July end will be 6 yrs with those recaptured times. my employer is sure if he applies for H1 extension in July before I have to leave the country with start date of Oct 2012 and get me back whenever it gets approved, then it is totally acceptable to do so and he checked this from lawyer.

To immigrationseeker,

"If you are not in US, then you do not have any status.So you are never out of status"....based on this comment can I assume that the period of July-Oct when I am out of US due to 6yr limit expiry, it will not hinder my extension of H1 from OCT based on pending PERM?

the reason I am so worried is I came across this 2008 memo in USCIS website which claims otherwise to all what we are assuming and even what my employer/lawyer says and I am confused if it applies to my situation or not???

http://www.uscis.gov/USCIS/Laws/Memoranda/Static_Files_Memoranda/Archives%201998-2008/2008/ac21_30may08.pdf

(please see PAGE 12, POINT C, specifically last sentence, it says about not being in H1 status during the 365 day period)

[kalyan_ac]

I did not read the link you pointed but what i meant was your h1 period will not be counted while you are away from the US but your h1b should be active(your employer should not cancel/revoke) for your pending PERM to be considered.

[nda050325]

If you have a valid visa stamp, you can probably look at leaving now, and reenter before your visa stamp expires, and then recapture the time spent outside the country.

Other option is to wait and see if the PERM gets approved in these three months, and then fiile I-140 in premium.

Good luck, and be sure to discuss your options with your employer/attorney.

[gkraju747]

If I go to India in May and stay there for 3 months .. .then, without me returning to US in July(ie I will still be in India as I can work from India as well temporarily if needed), can my employer apply for H1 extension of recapturing the 3 months since I would have been in India for that duration?(that would cover the 365 days rule) or is it mandatory to return to US before it expires to be able to recapture the period? (in other words, can I recapture the time while I am in India itself)

PS: I have a reason due to which I am checking on above possibility as you might wonder why I do not want to return and then recapture.

[nda050325]

If I go to India in May and stay there for 3 months .. .then, without me returning to US in July(ie I will still be in India as I can work from India as well temporarily if needed), can my employer apply for H1 extension of recapturing the 3 months since I would have been in India for that duration?(that would cover the 365 days rule) or is it mandatory to return to US before it expires to be able to recapture the period? (in other words, can I recapture the time while I am in India itself)

PS: I have a reason due to which I am checking on above possibility as you might wonder why I do not want to return and then recapture.

I will leave this to the experts for their comments, but my take on this is - As the very name indicates, recapture time is calculated based on the entry and exit date stamps on your passport. So, you may need to be physically present in US for being able to file the extension - not sure though.

[kalyan_ac]

If I go to India in May and stay there for 3 months .. .then, without me returning to US in July(ie I will still be in India as I can work from India as well temporarily if needed), can my employer apply for H1 extension of recapturing the 3 months since I would have been in India for that duration?(that would cover the 365 days rule) or is it mandatory to return to US before it expires to be able to recapture the period? (in other words, can I recapture the time while I am in India itself)

PS: I have a reason due to which I am checking on above possibility as you might wonder why I do not want to return and then recapture.

You need to get back to be able to recapture the time.

[gkraju747]

You need to get back to be able to recapture the time.

thank you for that clarification...after I leave in July, if my PERM gets approved say in August or September, can I get 1 yr H1 extension and get back immediately with stamping done?..will that work?

[kalyan_ac]

thank you for that clarification...after I leave in July, if my PERM gets approved say in August or September, can I get 1 yr H1 extension and get back immediately with stamping done?..will that work?

YES

[skondra]

I am currently working in "xyz" employer with H1b 5th year and green card process is not started yet. My future employer lets say "abc" applied perm labor when i am in H1b 5th year with current XYZ employer and perm labor approval with future employer is pending.

 

1. Can i get h1b 7th year extension with current xyz employer based on my future employer's (abc" pending perm labor?

2. Can i get further extensions (7th year and 8th year ...) with current xyz employer based on my future employers (abc) pending perm labor ?

 

3. if my future employers (abc) perm labor approved, Cani i get h1b 7th year extension with current xyz employer based on the  my future employers (abc) approved perm labor?

 

4. Suppose  my current employer (xyz) applied perm labor when i am in H1b 5th year end and. By that time my furture employers (abc) perm labor is approved and not stated I-140 petition . Which perm labor i use  for getting further H1b extension with my current employer (abc)?

 

5. Can i get H1B 7th year extension with any employer (if i swith employer) based on the my furure employer approved perm labor ?