PERM pending and H1 expiring.


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I have moved from company A to company B in July 2019 and Employer B initiated my H1 transfer process in July 2019 also requesting to recapture the H1B vacation time till Jan 5th, 2020 since my 6th yr H1 is expiring Sep 11. 2019.

Employer B also filed PERM on Sep 11, 2019 and is currently pending for approval. What are my options if the PERM is not approved within this week or next?

1) Can H1 be extended based on approved PERM if it is applied in 6th year hoping it is approved in next 3 weeks?

2) If not, employer mentioned that I need to leave US by end of December and can come back once H1 is approved with an approved I-140. In this case, can I work for the US company while I am in India waiting for PERM approval? Since I am on a remote job, this is fine with US client.

3) Since my transfer petition is still pending since July 2019, travel to India in Dec will mean I was out of status for any reason? Will this be any problem?

Appreciate your response in this matter.



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4 hours ago, pontevecchio said:

1. No. PERM or I-140 pending 365 days give you extensions.

2. Yes

3. In order to return, you will need an H1 visa and an approved petition for the company which you will work for, in this case, B.

You may need to work for India till I-140 approval. 

Thanks for your reply.

From your below point - did you miss to type after "case B." ?

"3. In order to return, you will need an H1 visa and an approved petition for the company which you will work for, in this case, B.

You may need to work for India till I-140 approval. "

Also I would like to add my I-94 expired Sep 2019 and with my H 1 pending still, will leaving in Dec account to being out of status post Sep?

FYI changed from client A to client B in Dec.


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Sure. Another question that I have is how my employer who has transfer in progress since July going to file a h1 in India. Is it going to be new H1 or amendment since the previous transfer petition is still pending?

In other words, what will happen in following 3 cases?

1) H1 transfer is still pending with or without RFE by the time when my employer files H1 in India with I140

2) H1 recieved rejection while I am in India. How is he going to file?

3) Will my current transfer turn void/denied if I move out of country?

I am going to run this through attorneys as well. Asking to see if someone had gone through same situation.

Thanks in advance.


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H1 cannot be filed in India. The petition will be filed with USCIS in the USA. The current extension will be moot since you will have no time after January 5 available to you in H1 status based on the total 6 years.

In order for the employer to file an H1extension for you, either PERM must be pending 365 days or an I-140 must be approved for you based on the PERM filing. Hence you will be working from India till the PERM is pending 365 days or if it is approved earlier, the corresponding I-140 is filed and approved.

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