H1-B expiring in Feb 2015, for how long would I have to leave the country?

[vivek19]

My H1-B visa is expiring in Feb 2015 (including recapture time) and my company is expected to file PERM application in early September. Since I have only 6 months left on H1-B visa, the firm has to send me outside the US. The HR says that if I stay outside the country just for 4 months, my immigration status should be OK. Even if HR files for another H1-B extension for 4 additional months, I will be able to recapture H1-B until June 2015, would I get I-140 by then so that I'm legally allowed to work in the US? For the time I spend outside the country, can the firm continue to keep me on US payroll?


Thank You

[raghvi]

My H1-B visa is expiring in Feb 2015 (including recapture time) and my company is expected to file PERM application in early September. Since I have only 6 months left on H1-B visa, the firm has to send me outside the US. The HR says that if I stay outside the country just for 4 months, my immigration status should be OK. Even if HR files for another H1-B extension for 4 additional months, I will be able to recapture H1-B until June 2015, would I get I-140 by then so that I'm legally allowed to work in the US? For the time I spend outside the country, can the firm continue to keep me on US payroll?


Thank You

How much and how the company pays you while outside US is not a concern of US Immigration as you are outside US. Even if they pay you, you would be bound by tax laws of the country you are working in , not US tax laws.

Whether company agrees to pay you in dollars while outside US, whether they want you to work in US time during those 4 Months, whether you agree to work in US time for those 4 Months these are things which are between you and you employer. Again nothing related to US immigration.

Are they planning to file in EB2 or EB3? As for I140 approval stage, it typically takes 8-12 Months if there is no PERM audit. So assuming they are filing your PERM in Sept 2014, the earliest possibility when they can file for your H1 extension is Sep 2015 or when I140 is approved, whichever is earlier.

Now as your entire 6 Years H1 stay is completing in Feb 2015, I would suggest you leave Jan 2015 (keeping 4 Weeks remaining in the 6 Years) and subsequently file for h1 extension in Sep 2015/upon I140 approval whichever is earlier.

This is my opinion not legal advice.