H1-B Extension in 6th year while PERM is Pending in audit

[abhijeet_chauhan]

Hello All,

H1B 6 year completing, PERM in Audit

I am currently on H1-B visa that is valid until June-20-2018 (I94 date is also June -20-2018).

My Employer is planning to file the extension for 3 months in premium sometime in First week of April since that is the max time left on H1-B visa to complete 6 years (to capture amount of time I have been outside the US).

My PERM was filed on Sep,1,2017 and is currently under Audit.

If everything goes fine and my extension is approved, my employer will file for another 1 year extension after Sep-1-2018 based on Pending Perm for 365 days.

My questions are:

Does the Denial on H1B extension override the current valid H1-B visa?

1. If at all my H1-B Extension is denied sometime in April 2018, do I need to leave the country in 15 days?

   Or can i still work until I have valid stamped visa i.e. June 20, 2018 (My I-94 is also valid until June-20-2018)?

   My Employer Visa team is saying that irrespective of my visa expiry date in June 2018, the most recent decision of the H1b extension denial will supersede my legal status in the U.S up to June 2018.

   As per my understanding and online research, I can stay until I have the valid stamped visa with Valid I-94.

   Will this create any problem in my GC process (PERM and I-140)?

Can we ask for H1-B Extension based on Pending Perm?

2. If at all my H1-B Extension is denied sometime in April, 2018, Can we still ask for 1 year extension after Sep 1,2018 based on Pending Perm for 365 days using the existing H1-B?

   Or I need to apply for a Fresh H1-B in the lottery and then only we can ask for extension?

   My Employer visa team is saying we need to wait for I-140 approval instead of asking for H1-B extension in case of Denial on H1-B Extension.

   Is that correct?

3. My Employer is asking for only 3 months extension (to capture amount of time you have been outside the country) now and later ask for 1 year extension after PERM is pending for 365 days (after Sep 1, 2018).

   But based on the USCIS rule that I read online, we can ask for 3 months + 1 year extension together because my PERM will have been pending for at least 365 days prior to the H1-B extension requested start date.

ac21intrm051205.pdf

Refer page 8, Answer to question #2

Please let me know if my understanding on the above point is correct or not?

Please provide your feedback on the above questions.

[Anil_Gupta]

Hi @abhijeet_chauhan

Does the Denial on H1B extension override the current valid H1-B visa?

Your H1B extension petition is for your future and you can stay in US until your current i94 expires, in case your extension is denied.
In your case, you can work till June 20, 2018 based on your existing approval and i94.

It should not create any problem with your GC process.

Can we ask for H1-B Extension based on Pending PERM (in Audit)?

Yes, you can apply for 1 year H1B extension based on pending PERM even if it is in Audit, if the PERM has been pending for more than 365 days.

365 days limit is IMPORTANT.

H1B extension denied

If your H1B extension is denied in April 2018, you cannot stay and work in US beyond June 20, 2018 (as per your current approval and i94).

The application for H1B extension based on pending PERM after Sep 1 i.e. after completion of 365 days will depend on what was the reason of first H1B extension denial.

If your employer can fix the reason behind the denial, you can pretty well apply after Sep 1 and get it approved.
If the reason of denial has not been fixed, the chances of approval will be pretty low.

H1B Fresh Lottery after 6 year limit exhausted, PERM pending

To apply for your H1B with fresh H1B lottery, you have to stay outside USA for at-least 1 year i.e. 365 days.

H1B Re-capture time and 1 year extension

Yes, you can apply for both recapture time and 1 year extension simultaneously.

But, most of the attorney will advise to go one step at a time.
I would agree with your employer’s team to first apply for 3 months (to re-capture the time) and let the 365 days pass and then apply for 1 year extension.

This is a straightforward way to keep the records clean. But, you can apply for both at the same time.

Let me know if you need more information.

[abhijeet_chauhan]

Thank you for the information Anil.