H1B/ PERM question


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Hi all,

My name is  kumar, This mail is regarding the H1b query, 

I94  start date: 21 Mar 2017 ( came to the US)
H1b expiry: 14 Feb 2023
PERM filed: April 20, 2022.

I came to the US on 21 Mar 2017, In the whole H1b period, I did not go on vacation to India. My PERM is filed this year (April 2022) and is under process.  My H1b visa expires on 14 Feb 2023. 
  I have the below question, could you please respond to the below questions?
 1.  Currently my PERM/ I140 process is taking more time, is there any possibility of my PERM getting approved by Dec/January?
 2. If my PERM is not approved by Dec/Jan, can I change the status to F1 until PERM is approved and move back to H1b. In that case,
 will there be any risk of losing the status of H1b/I140 if I change the status from H1 to F1? (Can we continue both statuses simultaneously H1 &  F1?)

 3. By January if I go to India does my PERM will still be valid and also would I come under the H1b cap exemption? 
 4. Can I apply for 1 year h1b extension is there any possibility for me now?


Thank you!!



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In response to your first question, right now, the DOL is taking around 9 months to process labor certifications. If your labor certification form 9089 was filed April 20, 2022, it is likely to be approved around January 20, 2022. Keep in mind that these are only estimates, based on the average amount of time that the DOL is currently taking to process applications and does not factor in situations where there is an audit.


In response to your second question, when your H1B status runs out, you have two options. You can leave the US for at least one year or you can switch to a different status. Because of that, you may switch to an F1 visa while waiting for your PERM to be approved. However, keep in mind that you can only have one status at a time so you could not hold both H1 and F1 status simultaneously.


In response to your third question, if you go to India before your H1B expires, you will be able to recapture the amount of time that you spent outside of the US. This means that the time you spend outside of the US can be added back to the amount of time you can spend inside the US on H1B status. This means that if you spend a month outside of the US, you can add a month of time onto the end of your H1B extension date. Further, being outside of the US would not affect your PERM process. If you left the US after the expiration date of your H1B, you would not be required to go through the cap again if you were to utilize one of the justifications for time beyond the initial six years.


In response to your fourth question, In order to request an H1B extension without spending at least one year outside of H1B status, you would need to either have an approved I-140 or you would need to have your PERM pending for over 365 days.


If you have questions or would like to discuss this issue further, please schedule a consultation with one of our attorneys.

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