H1 extension with Approved PERM and pending I-140


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Hello Guys,

My 6 year H1B is expiring on 18-Nov-2012. My Company did start the GC processing last year and filed my PERM on 16th Nov 2011. It was approved (after an audit) on July 23 this year. My company then filed an I-140 petition on August 31. They never do premium processing for any cases no matter what. Simultaneously, they went on to file a one year extension for my H1B since I do not have an approved I-140.

This is a fortune 100 company that does not bend on their rules even if it means an employee has to be out of country for a while (a fact that I admire, despite it hurting me bad). They also rarely file in EB2 even if the candidate qualifies and the job requirements do justify an EB2 filing. In my case also, they came up with my Indian education (3yrs + 3yrs) being the issue for which they would not file EB2 even though USCIS may have accepted it. Many (I personally know 10+ people) of my friends with exact same qualifications continue to file and get approved for EB2 Job classifications.

So after the long prologue my questions here are:

1. What if I get my I-140 approval before my H1B extension? Can we modify the petition for H1B to be for a three year extension? The reason I ask is because the H1 filing notice that the company had posted on its premises did have a start and end date 3 years apart. Could we use that same posting to modify a pending H1B extension petition?

2. Does the USCIS approve H1B extension cases filed before the date when the PERM application would have been more than one year overdue? In my case, that day would have been 17-Nov-2012, just a day before my I-94 expired. Did this application get filed too soon? I am guessing not but just want to hear it from someone who was in similar situation in the past.

3. In the unfortunate scenario of my H1B gets denied while I-140 gets approved subsequently, can I file for another H1B on the basis of approved I-140 (when that happens)? I may be able to switch to H4 (or even B2) and not have to leave the country while waiting for I-140 approval. Will that strategy work?

Just getting anxious now as the dates are closing in on me. I know in all probability things will work out for me as the documentation, the job, the company and everything else is solid. But would love to hear the perspective of someone who has been in this kind of situation.

Thanks in advance,


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