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H1 b recapture and stay beyond the re-capture period possible (if the approval has not yet been received)?

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Filed under: Immigration

My H1 B is expiring in Oct 5 2009. PERM applied in jan 2009 (applied with less than 365 days) . Can i go outside US for 5 days and then apply for re-capture this time period in a regular extension? Since regular H1b extension takes more time, I hope to receive the perm approval during this time. Can i stay legally in the US beyond Oct 5 2009 + 5 days i.e. Oct 10 2009 even if the H1b extension (recapture of this 5 days) has not been approved yet?

Attorney Answers 1


You should be able to recapture any time that you spent outside the US during the 6 years that you were in H-1B status. If you can just recapture 5 days, then you would only be authorized to stay until 10/10/09. You could not lawfully work in the US after 10/10/09, even if the H-1B extension was still pending, since you know the requested end date would already have passed. Unless you can change to another status, you probably need to make plans to leave the US for longer, because PERM is taking so long these days. You really need to discuss the strategy with your lawyer to ensure the timing works out.

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