PERM in audit filed with in 6th year of H1

[User998]

My EB-3 perm has been selected for audit and it is filed with in my 6th year of H1B.I wont be eligible for 7th year extension as my PERM has been filed with in last 365 days and went into audit(audit was on my company's recruitment process).My last date of 6 year H1 is Jan 15 2012.My attorney suggests that I can leave the country on Jan 15 2012 and then enter 1 year on or after my PERM priority date(PD is 3/18/2011) with new H1 filed and approved.That means as per him,I can come back on 3/18/2012 back to US with out spending whole 1 year out of US.This is valid as long as the PERM is in audited state or approved.Can any one confirm if this is correct and had any prior similar situation as mine.

[redgreenbluee]

please consult a lawyer.

yes, that is correct, you can file H1 beyond 6 years once your LC PERM (in audit) becomes pending for more than 365 days. you can also leave the US for vacation before 1/2012 for 2 months or more and recapture days to extend your stay beyond 3/2012 and continue with H1 extension. if you are married to H1, you can switch to H4 and wait until 3/2012 as well and apply H1 extension beyond 6 years.

what makes you eligible for H1 extension is you will have LC PERM pending for at least 365 days after 3/2012. you are talking about applying fresh H1 which you will need to be outside the US for 1 year.

Originally posted by User998:

My EB-3 perm has been selected for audit and it is filed with in my 6th year of H1B.I wont be eligible for 7th year extension as my PERM has been filed with in last 365 days and went into audit(audit was on my company's recruitment process).My last date of 6 year H1 is Jan 15 2012.My attorney suggests that I can leave the country on Jan 15 2012 and then enter 1 year on or after my PERM priority date(PD is 3/18/2011) with new H1 filed and approved.That means as per him,I can come back on 3/18/2012 back to US with out spending whole 1 year out of US.This is valid as long as the PERM is in audited state or approved.Can any one confirm if this is correct and had any prior similar situation as mine.

[User998]

Thanks for the detailed response.My wife is currently working on H1 and I will check whether my current company's policy allows me to change from H4-H1 once my PERM is pending for more than 365 days.I have seen them processing only H1 and H1-H1 transfers so far.

If I stay in US until Jan 2012(as I have 1 month old kid now and I need to be here as long as possible),when leaving the country,I would have to surrender my I-94 card.How can I apply for extension once my labor is pended for more than 365 days as I wont have I-94 card with me at that time in March 2012.

Thanks again for your time and detailed response in your earlier post.