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Employment based GC in process, but six years up.

Jersey City, NJ |
Filed under: Green cards

I have my employment based GC in process, however my six years are up in May but my perm is not yet approved and my 365 days since application are only over in August. I will be leaving the country from May to August to work in another office abroad. I want to know if my employer can file my H1B extension (365 day rule) from now or do they have to wait until August to file for the extension.

Attorney Answers 4

Posted

Your employer could have only filed a 7th year H-1B extension on your behalf had your PERM application been pending for at least 365 days PRIOR to your H-1B's expiration date, which unfortunately is not the case here.

Consequently, you will have to remain in abroad one full year before having an employer apply for a new 3 year H-1B period on your behalf. Your PERM and hopefully future I-140 immigrant petition will continue unaffected by your being abroad.

Also, in the H-1B category "dual intent" is recognized, thus you will not need to be concerned with "immigrant intent" issues when applying for an H-1B consular visa stamp in the future..

Behar Intl. Counsel 619.234.5962 Kindly be advised that the answer above is only general in nature cannot be construed as legal advice, given that not enough facts are known. It is your responsibility to retain a lawyer to analyze the facts specific to your particular situation in order to give you specific advice. Specific answers will require cognizance of all pertinent facts about your case. Any answers offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship.

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Posted

Hey Giacomo, Thanks for your advice. As I understand, you mean to say that we cannot at all file for a 7th year extension in my case. But my employers lawyer is telling me that we can file for the extension after the 365 days are over, it's just that I have to be out of the country from May to Aug. They are telling me that in August they will file for my 7th year extension and I can go for stamping and come back to work here again provided my perm is in pending status. But I just want to know if they can file for that extension before August or do they have to wait for August (365 days) then only apply for the extension. If my perm is approved when I am not in US between may and August, do I get 1 year h1 extension? Or do I need to file for I-140, and h1 extension followed by visa consular processing before I come back to US? Also what do you mean by " dual intent" in H1B visa? Thanks!

Giacomo Jacques Behar

Giacomo Jacques Behar

Posted

I would defer to your attorney's advice. Obviously he is more familiar with your case than I am.

Asker

Posted

Thanks Giacomo! We are also going to see the company lawyer. But we also wanted to be sure we didnt miss out on any options. I came across something on the internet which was very similar to my case. (http://www.murthy.com/2011/04/08/filing-labor-certifications-during-sixth-year-of-h1b/) We were thinking of going to option 3. But from everyones response on this forum it seems like that may not be possible. Can you please let me know your inputs. Thanks!

Giacomo Jacques Behar

Giacomo Jacques Behar

Posted

Again, I wouldn't want to second guess your attorney. I'll defer to him/her on this. I hope our answers were helpful. Please don't forget to designate a "helpful" and "best answer" to this question.

Posted

No. No luck. They filed too late for you.

NYC EXPERIENCED IMMIGRATION ATTORNEYS www.myattorneyusa.com; email: info@myattorneyusa.com; Phone: (866) 456-­8654; Fax: 212-964-0440; Cell: 212-202-0325. The information contained in this answer is provided for informational purposes only, and should not be construed as legal advice on any subject matter.

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Posted

Hey Alexander, Thanks for your response. I came across something on the internet which was very similar to my case. (http://www.murthy.com/2011/04/08/filing-labor-certifications-during-sixth-year-of-h1b/) We were thinking of going to option 3. But from everyones response on this forum it seems like that may not be possible. Can you please let me know your inputs. Thanks!

Alexander Joseph Segal

Alexander Joseph Segal

Posted

I cannot, because what you are asking me to do is provide you with a legal opinion. I cannot provide free of charge legal opinions on AVVO. I need to pay my rent. So, if you want me to be case specific, you need to contact me via my website and pay for my time.

Posted

This doesn't look good.

Schedule a meeting with the company's immigration lawyer, not a non-lawyer in HR ... you may need to go home.

PROFESSOR OF IMMIGRATION LAW for over 10 years -- This blog posting is offered for informational purposes only. It does not constitute an attorney-client relationship. Also, keep in mind that this is an INTERNET BLOG. You should not rely on anything you read here to make decisions which impact on your life. Meet with an attorney, via Skype, or in person, to obtain competent personal and professional guidance.

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Posted

Thanks Capriotti! We are also going to see the company lawyer. But we also wanted to be sure we didnt miss out on any options. I came across something on the internet which was very similar to my case. (http://www.murthy.com/2011/04/08/filing-labor-certifications-during-sixth-year-of-h1b/) We were thinking of going to option 3. But from everyones response on this forum it seems like that may not be possible. Can you please let me know your inputs. Thanks!

F. J. Capriotti III

F. J. Capriotti III

Posted

Yes, the going home option is what I was hinting at ... clearly the company lawyer is the one to talk to. He/she may have told you about this option w/o you having to surf the internet.

Posted

What I understand is that they may seek to recapture time outside the U.S. and seek 7th year extension.

This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. If you would like additional information based on this response, please contact my office at 510 657 7665 or 415 902 0832 to schedule a consultation.

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Posted

Thanks Tripti! I have already captured time out from the US and with that it gives me until May. So not much luck on that for me. I came across something on the internet which was very similar to my case. (http://www.murthy.com/2011/04/08/filing-labor-certifications-during-sixth-year-of-h1b/) We were thinking of going to option 3. But from everyones response on this forum it seems like that may not be possible. Can you please let me know your inputs. Thanks!

F. J. Capriotti III

F. J. Capriotti III

Posted

Agreed .... the company lawyer is in the best position to double-check this 7th year option ... by departing the US for a while.

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