H1B Extension denied and PERM filed in Dec-2018

Hello Anil,

Below is a situation of my friend:

H1B extension rejected (with reason ‘doesn’t qualify as Specialty Occupation’) in first week of DEC-2018 and by then not much time left on i-94 ( ~ 2 weeks more). Hence, per his employer/attorney advise, he returned immediately to India.

Though extension was filed in July with Premium, RFE was raised on the case immediately. Looks like employer submitted RFE response only in the last week of set deadline for RFE response and then later USCIS denied extension towards the end of 15-days response time limit from RFE response submission.

Though, he still has 1 year more until his Max-Out, his employer is not ready to take any action on H1B extension denial until 1 year, for reasons best known only to them.
Later, he received notification that his PERM (EB-2) is filed in last week of DEC-2018.

  1. Is there really a 1-year cooling off period for any action to take in case of extension denial with USCIS?

  2. What options in your view he may have with this situation?

  3. Does travelling to non-USA countries on Work Permit during this 1 year wait time with same Employer, have any impact on future H1B/PERM processing?

  4. Can he change employers and initiate H1B transfer? Does change of Job/Employer impact his PERM process?

Really appreciate your effort and time in clarifying above questions.


H1B cooling off period after extension denial

There is no official cooling off period after H1B extension denial.

Options after H1B Extension denial

You can file another H1B extension, transfer or amendment immediately.

The only thing to keep in mind is to fix the denial reason before re-applying. Else, you will be wasting money.

Travel to Non-US country

You can travel anywhere outside US and it does NOT affect H1B or PERM processing.
US laws are only active inside US. It does not matter what you do outside US.

H1B Transfer and PERM

Yes, H1B transfer can be filed.
PERM is employer + job specific. So, if you change employer, your current employer will withdraw PERM and you will lose it.

Your new employer will have to file PERM again.

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Hello Anil,

Thank you so much!!! Your explanation provides good insights into the situation and gives us proper & correct details to think thru and proceed further!!! :relaxed:

You are really doing great job and helping so many of us, by guiding towards right direction.


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