Urgent ->PERM Filing before H1B 5 Years Complete

[Z0123]

Hi All,

I have a situation were my H1B 5 years get complete in Feb 2019. My employeer didnt yet start my GC Process ( PERM). He May start in 3 Months from now, Say he may start in Dec 2018. If so will i be in safe position to extend my H1B after 6 years ? As we have a rule that PERM Labour should be applied before 365 days. 

1) Applying Labour/PERM means what proof we will have to show to extend my H1B after 6 years. ( As i know if it is in Process then we can extend H1B)

2)  What suggestion you can give me to make sure i am in safer position, As i dont want to stay outside USA for couple of months and comeback. I am full time employee so they have a rule that they can apply my labour before end of 5 Year.

[Ken7]

There is no rule that you have to apply 365 days before H1-B expiry. The rule is that, 7th year H1-B extension can be applied for if your PERM or I-140 has been pending for more than 365 days. Or your PERM and I-140 are approved. So it prudent to apply for PERM prior to 365 days from H1-B end, so that in the event of an audit where the PERM is held up and not cleared by the time your H1 ends, you can apply for a 1-year extension and maintain continuity in your job and not have to leave the country.

The PERM process usually takes 4-6 months (can take longer). So if the employer starts in December'18, the PERM application is likely to be submitted around May 2019 (+/-). Which means if your PERM (and I-140) don't clear by Feb 2020, you will have to leave the country and wait till May 2020 (365 days after your PERM was submitted) to apply for a H1-B extension based on a pending PERM.

Unfortunately there is no alternative except either applying for PERM early or hoping that the PERM clears in a few months (and is not audited) if applying for PERM in the 6th year.