Skip to main content

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


  1. 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.


  2. 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.


  3. 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.


  4. 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.