H1B Extension with PERM Pending (Audit after 6 years max out?)
H1B extension PERM after 6 year is allowed in 1 year batch if PERM is pending for 365+ days including PERM audit days. PERM has no premium processing.
|
Listen to this article
|
H1B extension after a 6-year max out is possible based on your current PERM or i140 status. Here are all the options available:
This article will discuss:
PERM Approved
You can apply for a 7th-year H1B extension if the approved PERM was filed 365 days or more before the H-1B Extension application.
If you are falling short of 365 days, attorneys recommend using H1B recapture time to reach the 365-day limit.
i140 Pending
You should upgrade your i140 application to premium processing and get the result in 15 days if you are too close to the 6-year limit.
The other option is to use H1B recapture time and try to make PERM applied for a date past 365 days before the H1B 6-year limit. By recapturing vacation time spent outside the USA, you will qualify for filing a 1-year H1B extension.
i140 Approved
You can file an H1B 3-year extension if your PERM and i140 are approved before the end of H1B’s 6th year. This is the best-case scenario.
All these scenarios are possible due to the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) law allows H1B extensions beyond 6 years based on certain conditions.
No PERM Applied
If your employer has not applied for PERM and you are close to completing the H1B 6-year quota, you can use the H1B time recapture rule to extend your H1B.
H1B Recapture Time
H1B recapture time means that you count all your vacation time spent outside the USA and claim it to extend your H1B 6-year quota date.
Example:
You are working on an H1B visa from 1 Jan 2013 to 1 Jan 2019 in the USA. During your time in the USA, you took 1 month (30 days) vacation each year to visit your family in India.
This makes it 30 * 6 = 180 days of vacation time outside the USA. Your 6-year H1B quota will end on 1 Jan 2019 if you do not recapture vacation time.
You can recapture 180 days after 1st Jan 2019 to extend your US H1B stay till 30 June 2019 by filing an H1B extension from 1 Jan 2019 to 30 June 2019.
FAQ
You can file an H1B extension after 6 years if your PERM is pending for more than 365 days.
You can file a 7th-year H1B extension with an approved PERM only if the PERM was filed more than 365 days ago.
This situation would normally arise if you have filed i140 in regular processing and are waiting for its approval.
You can apply for the H1B 7th-year extension for 1 year with PERM.
You need an approved i140 to file a 3-year H1B extension.
You can file a 1-year H1B extension when the PERM audit is pending for more than 365 days.
The PERM filing date should be considered for counting 365 days.
Your employer should file i140 within 6 months of PERM approval.
PERM approval expires in 6 months.
You cannot use expired PERM to file i140. A new PERM should be filed if the current one has expired.
You can keep filing 1-year H1B extensions as long as your PERM is pending.
Example: Some people have been using their PERM to file H1B 10th-year extensions too.
You would need a new PERM for a new job position after promotion in the same company.
