Second PERM in 7th year extension period - eligibility fo 8th yr extension - time spent out of US

[knbknb]

Suppose, I get 7th year extension based on PERM being 365 days old. Later in 7th year, another PERM is filed as first one gets in appeal. Now since second PERM is filed in middle of 7th year, it will not have passed the 365 day rule for 8th year extension. Can I stay outside US before 7th year extension is expired and then when 365 days are passed since second PERM filing, I reenter US and get 8th year extension? Is it possible to do this?

 

Or is this only valid when 6th year h1b is about to expire and you spend time outside of US to wait 365 days from PERM filing?

[itsmeusa]

Once your H1b petition / I-94 expires at the end of 7th year, you need to go out of US unless your PERM is approved + I-140 is also approved before the end of 7th year.

 

What you described about filing 2nd PERM, that's not the qualification to get 1 yr extension (8th yr) as you had already completed 6 years on your H1b.

[knbknb]

Thanks itsmeusa,

If second Perm goes into audit  and is still pending at the end of 7th year extension, I am sure I have to go out of US. Question in my mind is for how long?

 

Can the 8th year extension be filed while I am out of US and 365 days have passed since second PERM filing date? This way the period of stay outside US will be less than 1 year e.g. 4 months, if second PERM was filed 8 months before 7th year extension expiration.

 

OR is it that once you cannot extend beyond 7th year and you go out of US, the old H1b is finished for good and the stay has to be minimum 1 year and new H1b will be filed to come back and new clock of 6 year H1b will start?

 

I know it is little complicated; in simple words, recapturing time works for sure before 6 year of H1b, does it work for 7th or 8th year of H1b i.e. if you are granted valid H1b status (within 6 year or beyond 6th year) and you spend time out of US, can that time be recaptured? I would think yes as you had been granted time to spend in US as H1b which you did not and should be able to recapture it; especially if you can do it for first 6 year period, then beyond 6th year would alos be. However, I am not able to find it written clearly.

 

Please help.

[itsmeusa]

Can the 8th year extension be filed - No. Whatever you do, it's not possible in your case unless your 1st or 2nd PERM is approved + I-140 is approved. 

 

In your case, you could wait out of US until your I-140 is approved and then get H1b filed for 3 years.

OR

Stay out of US for complete 1 year and then get H1b cap filed to get full 6 years.

 

It's not complicated! You think it's complicated...

[knbknb]

Thanks again itsmeusa,

I found this nice article on web.

http://www.******/articles/2006,1010-eiss.shtm#_5

 

Seems like USCIS is not clear and not consistent about recapturing time.

[puam]

Thanks itsmeusa,

If second Perm goes into audit  and is still pending at the end of 7th year extension, I am sure I have to go out of US. Question in my mind is for how long?

 

Can the 8th year extension be filed while I am out of US and 365 days have passed since second PERM filing date? This way the period of stay outside US will be less than 1 year e.g. 4 months, if second PERM was filed 8 months before 7th year extension expiration.

 

OR is it that once you cannot extend beyond 7th year and you go out of US, the old H1b is finished for good and the stay has to be minimum 1 year and new H1b will be filed to come back and new clock of 6 year H1b will start?

 

I know it is little complicated; in simple words, recapturing time works for sure before 6 year of H1b, does it work for 7th or 8th year of H1b i.e. if you are granted valid H1b status (within 6 year or beyond 6th year) and you spend time out of US, can that time be recaptured? I would think yes as you had been granted time to spend in US as H1b which you did not and should be able to recapture it; especially if you can do it for first 6 year period, then beyond 6th year would alos be. However, I am not able to find it written clearly.

 

Please help.

Did you get any positive response for 8th year extension? I am similar to your case.

[knbknb]

puam, the only relief is the article which I posted in previous message that you can request recapture of time in 7th or 8th or beyond years. I will not bet on it. Just try to avoid having PERM filing less than 365 days before visa expiration date especially when you are in beyond 6th year of visa. If you cannot avoid, just hope that PERM does not go into audit and if it does and you request recapture of time then hope USCIS approves it otherwise stay 1 year out of US or wait for I-140 approval whichever is earlier.

[itsmeusa]

@knbknb - what's your strategy now after you have explained your case? Just wanted to understand to get more information.

[knbknb]

@itsmeusa - my strategy is try to avoid gap in 7th year, if I cannot (company closing office or layoff etc.) then just hope to not get audit in new perm, if I get audit in new perm, leave country just before 7th year completion and ask USCIS to recapture time spent outside when 365 days are over after PERM filing. Worst case be ready to spend 1 year out of US.

[itsmeusa]

@knbknb - thanks for the info. I wish you all the luck!

[puam]

I left USA 1 day before my 7th year extension expire and my 2nd PERM was applied after 6 years max out. Now my company is saying they cant file for 8th year extension even though me 2nd PERM pending more than 365 days. Can you please confirm if you were success to file 8th year extension. They are saying at least 1 day recapture day has to be there in the 6 year max out. Initially they agreed and based on that i left my family in USA and now they are not agreeing to file. It will be great help if anyone confirm they succeed on this. 

[knbknb]

Puam,

1. Is your 2nd perm in audit?

2. Is your company ready to file recapture when your second PERM and I-140 thereafter is approved? OR they are not ready to do anything before 1 year out of US?

3. If you are still working for same company in overseas office, you can let it remain like that for one year (unless for personal reasons). This way you can get new H1b for 3 + 3 years or L1 visa.

4. Maybe you already checked this - if your first PERM is still in audit or was approved in last 6 months and company has not withdrawn it, you can file 8th year extension based on first PERM.

5 Lastly, I would say forward your company the link I posted in one post on sept. 24th above and try to convince them to take a chance with USCIS.

 

Wish you good luck.

[puam]

1. My 2nd perm is still in first stage(Pending) and not moved to Audit last 365 days.

2.They are ready to file extension only if 2nd PERM and I-140 are approved

3.I am working from overseas for the same company. I am looking for an immediate option due to personal reason. I need to wait for 2016 new H1-B quota or L1. Just want to find out whether if there is any possibility without waiting for 1 year in overseas

4.My PERM was withdrawn from BALCA and filled 2nd PERM for the same company

5.Let me use it and check with my company.

 

I am trying to find out a person who had similar problem like me and solved it will help me to take as reference to show as a proof.

 

Thanks for your great support

[itsmeusa]

@puam - you wont find such person on such immi forums. And moreover you can't give his case as a proof. You must be taking advice from competent immi. lawyer who have knowledge and access to whole lot of cases / court rulings / USCIS memos etc.