Max out date 7 Sep 2016..Perm not filed yet

[san_diego]

Hi,

 

My H1B will expire on 7 Sep 2016 (all 6 years). My perm is not filed yet. My company is in process of filing perm and this might take another 3 months. 

 

If my perm is not approved by 7 Sep 2016 I will have to go back since perm will not be pending 365 days assuming my company files my perm after 6 Sep 2015. 

 

What are my options in this case. 

 

1. If H1B is maxed out on 7 Sep 2016 and perm is still pending I will have to go back right?

2. If perm is approved after 7 Sep 2016 and I am not in US I will have to come to US on a new     H1B right? or Can my previous H1B be extended into 7th year?

3. What is the average processing time for Perm? 

 

 

Thanks

San_diego

[jairichi]

1. Yes.

2. Approved PERM does not get you an extension. Only a PERM or I140 pending for more than a year or an approved I-140 gets an extension.

[san_diego]

Thanks for the reply. 

 

My employer came back saying they will file PERM by Dec 2015/Jan 2016. 

 

They also mentioned if PERM + I140 is not approved I will have to go back. 

 

One option they gave is to find out the requirement for L1A filing. 

 

Am I eligible to file L1A after H1B expires in Sep 2016?

 

1. I came to US in Aug 2014. Prior to that I was working with this Company in India and UK for more than a year. Will this make me eligible to file L1A.

2. Since I will complete 6 years on H1B I will get only an year on L1A if I am eligible. 

3. After 4 years on my H1B I was stuck in India on 221g for 30 months. I recaptured 2 years left on my H1 and came back. If I have to apply new H1b do I have to go back and stay for an year to reset H1b clock?

 

Thanks

San_diego

[jairichi]

Thanks for the reply.

My employer came back saying they will file PERM by Dec 2015/Jan 2016.

They also mentioned if PERM + I140 is not approved I will have to go back.

One option they gave is to find out the requirement for L1A filing.

Am I eligible to file L1A after H1B expires in Sep 2016?

1. I came to US in Aug 2014. Prior to that I was working with this Company in India and UK for more than a year. Will this make me eligible to file L1A.

2. Since I will complete 6 years on H1B I will get only an year on L1A if I am eligible.

3. After 4 years on my H1B I was stuck in India on 221g for 30 months. I recaptured 2 years left on my H1 and came back. If I have to apply new H1b do I have to go back and stay for an year to reset H1b clock?

Thanks

San_diego

1. Yes, if you have worked 1 year continuously for the employer abroad.

2. Yes.

3. Yes, you need to stay outside for a year after which a cap subject H1B has to be filed & approved. If your I140 is approved by tht time you are cap exempt.

[rara5]

I am surprised nobody else mentioned this - Another option besides the L1 COS is to extend your H1B time from Sept'16 to Dec'16/Jan'17 to meet the 365 days from when your PERM is actually filed. All you would have to do is spend 3 months, or whatever make-up time you will need to meet the 365 days, outside the country before Sept'16 and then recapture that. You have a year till your H1B expires and seems possible for you to plan one or multiple trips outside the country to account for the additional time you need.

[jairichi]

I am surprised nobody else mentioned this - Another option besides the L1 COS is to extend your H1B time from Sept'16 to Dec'16/Jan'17 to meet the 365 days from when your PERM is actually filed. All you would have to do is spend 3 months, or whatever make-up time you will need to meet the 365 days, outside the country before Sept'16 and then recapture that. You have a year till your H1B expires and seems possible for you to plan one or multiple trips outside the country to account for the additional time you need.

An extension of H1B beyond 6 years will be possible only if PERM or I-140 is pending for approval for more than a year or an approved I-140. And, in OP's case PERM is not filed and will be filed in 3 months time i.e. around December 2015. If PERM is pending for approval in Dec 2016 then employer can petition for 1 year extension. If PERM is approved by that time there is no possibility of extension till I-140 gets approved.

[rara5]

@Jairichi. Yes, that's what I meant- If he has recapture time available to extend the H1b to Dec'16 (or to the date that meets the 365 days of the PERM filing) - then there should be no issue. PERM processing is generally 6-7 months (without audit) and I-140 is 4-5 months currently (or he could premium it) - so both stages have sufficient time to clear before Dec'16. In case of a PERM audit- he will have met the 365 day rule anyway so he can extend beyond DEc'16 as well. The only possible, but less likely, case is that the I-40 takes an inordinate amount of time. For that it makes sense to extend the H1B as much possible with recapture time.