Clarification over 365-day rule

[HarishEWR]

HI,

My employer filed PERM in March, 2014. My H1-B expires in September 2014 (6 years including recapture). Currently, PERM processing is taking anywhere from 9 months to a year (maybe longer if audited). It is highly unlikely that before September I will get PERM certified. I guess I have to leave the US for few months. I have a question regd. the duration of this stay outside USA. Suppose if PERM is certified in December & I-40 takes 2 weeks under premium, can I schedule a stamping interview and return to USA in December/January or I need to wait until 1-year i-e March of 2015 to enter USA? Any guidance will be appreciated.

 

Thanks,

Harish

 

[jairichi]

HI,

My employer filed PERM in March, 2014. My H1-B expires in September 2014 (6 years including recapture). Currently, PERM processing is taking anywhere from 9 months to a year (maybe longer if audited). It is highly unlikely that before September I will get PERM certified. I guess I have to leave the US for few months. I have a question regd. the duration of this stay outside USA. Suppose if PERM is certified in December & I-40 takes 2 weeks under premium, can I schedule a stamping interview and return to USA in December/January or I need to wait until 1-year i-e March of 2015 to enter USA? Any guidance will be appreciated.

 

Thanks,

Harish

Based PERM or I-140 pending for more than 365 days or I-140 approval an employer can file for extension.

[HarishEWR]

I-140 approval an employer can file for extension.

 

Gotcha. But, what if the employee is outside US? Does he/she have to wait until 365 clock or a soon as I-140 is approved he/she can enter US (after stamping of course). Please Guide. 

[jairichi]

Gotcha. But, what if the employee is outside US? Does he/she have to wait until 365 clock or a soon as I-140 is approved he/she can enter US (after stamping of course). Please Guide. 

If I140 is approved then employer can immediately file a cap exempt H1B petition based on that.