H1B PERM applied in 6th year ending in 7 months. Can H1B be extended?

Hi Anil,

My company HR answered the DOL questionnaire and the PERM was officially filed on Apr 16, 2018 (I understand this to be filing the ETA-9089 form to apply for the PERM).

What is current PERM timeline?

What is the current timeline in my case? My current H1-B visa expires Dec 5th 2018 (6 years + captured time outside country).

I have been a full time employee all 6 years with one job change.

Do we have to wait until the PERM is approved to apply for H1-B extension?

What will my options be if my PERM is not approved by mid October?

Hi @amar18

Current PERM processing time

We track PERM processing times here. This is updated daily:

You can check the month for which PERM filing are currently being processed.
In the past couple of years, the normal time has been 5-6 months.

Your chances of PERM approval by Dec 2018?

I see that you have about 6 months left. So, your employer has filed it just on the border!
They have played tricks to delay it as much as possible i guess.

But, with current timeline, you should get the PERM approval somewhere around Nov end if everything is normal.

Do we have to wait for PERM approval to file H1B extension?

Well, officially, if the PERM has been pending for more than 365 days, you can apply for H1B extension in 1 year increments.

In your case, that would not be possible as your total time including recapture will still not complete the 365 day mark counting from Apr 16, 2018.

My options if PERM is not approved and 365 days have not elapsed for PERM pending

Unfortunately, you will have to leave USA and wait for PERM approval outside USA.

You can apply for H1B extension once either 365 days have elapsed for pending PERM or it is approved.

Related:

Let me know if you need more information.

Thank you for the prompt response. I have the option to convert to H4 under my wife’s approved I140. How feasible is it to switch from H1 to H4 and back to H1? Will my perm application be dropped if I switch to H4?

When will be a good time to switch to H4? Should I wait all 6 months before I make the decision?

You can file H1 to H4 change of status application anytime before your i94 expires.

Please remember that PERM application is for future application and has nothing to do with your H1B or H4 applications.

If you really want to stay in US and really think that your chances of PERM approval are low before Dec (which is really on the border), you should file H4 COS status application as soon as possible.

H4 COS applications are also taking 7+ months these days!
Waiting for 6 months is NOT an option.

So, take decisions fast.

I have an option to travel to India next month to stay outside the country and recapture that time when my company files for H-1 Extension. My current Visa expiration on passport is september 30 2018. The earlier date of Dec 5th was including the 65 days I have been outside the country since the onset of my H1. If I travel outside the country, I can extend my visa by 100 days with new expiration date being January 7th, 2019.

To be on the safe side, I can start the H4 COS application. My question is, can I travel when the H4 application is in process?

No, you cannot travel when your H4 change of status application is pending.

If you do travel outside USA, USCIS will automatically abandon your H4 COS application. This will be a waste of time and money.

It is much faster to convert to H4 by applying at US embassy in your home country than filing for H4 COS within US.
If you are thinking of travel and want to convert to H4, you can get a H4 visa stamp directly from embassy and then enter US.

Another question, changing to H4 takes about 6-7 months. If by then, my PERM is approved, can I cancel the H4? What if my H4 is approved before a decision on my perm is made? Do I have to resign my job?

If I got to India and get stamped as H4. Will my current H1 be terminated (and my current job)?

If your H4 change of status is approved, yes, your status will automatically change to H4 and you will have to STOP working immediately.

You can withdraw the H4 COS application anytime before it reaches a decision.

If you are outside USA, your status does NOT matter.
The status is STAMPED on your passport when you enter US at port of entry by immigration officer.
Your H1B is NOT cancelled automatically.

When you enter the US, it depends on what visa you use to enter US when asked by immigration officer.
If you use your H1B at that time, your status is H1B.
If you say H4, you are entering US on H4 visa. You cannot work. Simple.

Thank you so much Anil. Really helpful information.

At this time, I think it is best to travel to India to add more days to the “time to recapture” clause. Upon the end of my new visa expiration date of Jan 7th, 2019 and PERM is not approved yet, I can resign my current job and visit India once more to get H-4 visa stamped and re-enter with that status.

I am only hoping that my current employer does not cancel the existing PERM application once I resign and leave.

Yep…that could be a good plan.

But, I don’t understand why you want to resign?

Your employer also knows that if PERM is pending by your 6th year end date and extension is not possible, you cannot work and have to leave US anyway.

So, this is perfectly fine and they should keep it active since you will be ready to re-start work once H1B extension has been filed based on PERM.

Does that make sense?

I miss spoke when I said resign. I meant to leave US and work from our India office. Thank you Anil for all the help. Really appreciate it.

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