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.
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..
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