Eligibility for 1-year H-1B extension based on pending PERM (PERM filed 9/28/2025, max-out 9/30/2026)?
My employer filed my PERM on September 28, 2025.
My H-1B max-out date is September 30, 2026, and my final H-1B extension request (until 9/30/2026) is currently in process with USCIS.
Assuming the PERM remains pending for one year, will I be eligible for a 1-year H-1B extension under the AC21 365-day rule after September 28, 2026?
Also, can my employer file the next extension before the full 365 days are completed (to avoid any gap), or must we wait until after September 28, 2026, to file?
Assuming the PERM remains pending for one year, will I be eligible for a 1-year H-1B extension under the AC21 365-day rule after September 28, 2026?
Yes
Carl Shusterman (former INS Trial Attorney, 1976-82) has 40+ years of experience practicing immigration law. He has testified before the U.S. Senate Immigration Subcommittee as an expert witness. He was featured in the February 2018 issue of SuperLawyers magazine. His response to your question is general in nature, as not all the facts are known to him. You should retain an attorney experienced in immigration law to review all the facts in your case in order to receive advice specific to your case. Mr. Shusterman's statement above does not create an attorney/client relationship. This answer may have been generated with the help of artificial intelligence.
Yes, you will be eligible for a 1-year H-1B extension beyond your max-out date if your PERM is still pending on September 28, 2026 (365 days after filing). Your employer can and SHOULD file the extension petition before the full 365 days to avoid any gap in status - file around late August/early September 2026. As long as the PERM has been pending 365+ days by the time USCIS approves the extension, you qualify. Once the extension is filed before your max-out date, you receive 240-day automatic work authorization while it's pending, protecting you from any gap.
Has your employer confirmed they'll file the PERM-based extension?
If my answer is the "BEST ANSWER" and/or "HELPFUL" please mark it accordingly. Fluent in 7 languages. Board Certified Specialist in U.S. Immigration Law, The State Bar of California...
Assuming the PERM remains pending for one year, the H1B employee will be eligible for a 1-year H-1B extension under the AC21 365-day rule after September 28, 2026. Which may be filed months before the max date. There is also the 240 day extension employment rule.
Please acknowledge my answer as "BEST ANSWER" and/or "HELPFUL"? If you think so. Mr. Smith has 25 years of successful U.S. immigration law experience with cases just like yours. Still, his response is general in nature, as all the facts are unknown to him, and cannot be construed as legal advice. Please retain immigration counsel to analyze your particular situation in order to receive specific advice. Specific answers requires knowledge of all the pertinent facts of your case. Any answers offered by Mr. Smith on Avvo are of a general nature only, and does not create an attorney-client relationship.
