PERM filed H1B expires soon

[rohit.rohitnar]

Hi:

My PERM was filed a couple of weeks ago. My H1B expires in September 2013. If my PERM is approved before that, I know that I could get my H1B extended via I-140 PP.

I need to know what happens if that is not the case. I am aware that I need to leave the country. As we cannot predict PERM approval, let us assume that the PERM is approved, say in November 2013. Assuming I go through the H1B stamping, not subject to cap, when is the earliest that can I come back to the US and start working for the same company that filed my PERM?

I have a mortgage going on so a response will be appreciated and help me plan for things ahead.

Thanks

[Attorney_22]

Unless you are eligible to extend based on the 365 day rule for labor certification, you are only eligible to obtain an H1B beyond the normal six year limitation if you have a valid and approved I-140 petition filed on your behalf. The ability to obtain an H1B with an approved and valid I-140 is the same if you are extending status within the U.S. or if consulate processing because you are out of the U.S. If you would like to discuss this in more detail, please schedule a consult to speak to one of our many experienced U.S. immigration attorneys.

[srikanth311]

Hi Rohit - Did you had a chance to speak to the lawyer. My immigration status is the same.

Wanted to check with you regarding the GC filed in sixth year ?

I came across the below article from murthy.com.

 

http://www.murthy.com/2011/04/08/filing-labor-certifications-during-sixth-year-of-h1b/

 

Option 3: Leave the U.S. and Return After the 365-Day Point

Mr. Kumar, a national of India, works at Smart Experts, Inc. His six years of H1B time ends January 4, 2012. His company is going to file his LC on May 4, 2011.In this example, Mr. Kumar's six years will end before his LC will have been pending for at least 365 days. The possibilities are as follows. 

In our example, there is a gap between the expiration of the six years in H1B status (January 4, 2012) and the 365-day point (May 4, 2012). One option, if the employer agrees, is to leave the United States at the end of the six years and return on a one-year H1B after the LC reaches the 365-day point. Thus, Mr. Kumar would have to spend January 4 - May 4, 2012 outside of the U.S., but he would be able to return in H1B status after the 4th of May 2012 for one year. He would be eligible for further H1B extensions, as long as his green card case remains in process. This is often a workable option for positions that can be performed remotely, or for employers with offices outside the United States.

This option can be combined with the recapture provisions to minimize the time spent abroad. Using this option does not make the individual subject to the H1B cap or lottery. The ability to obtain a seventh-year H1B from abroad was covered in our NewsFlash, USCIS Memo on H and L Timing & H1B/H4 Decoupling (20.Dec.2006).