6 year going to over, waiting for labor approval

[surisingh]

Hi All,

My 6 year on H1B is going to over in Feb 23, 2012, but still waiting for the labor certification approval. By Feb 23, 2012, if i dont get my labor certification, Can I go back to India and come back once the labor certification is approved?

Or, Since my labor is not approved when my 6 year max out date is over, Should I stay outside of US for 1 year and come back to US in fresh H1B.

Which one is true?

Thanks
CS

[shervin143]

Was your PERM filed 365 days prior to the 6th year end? If yes, then extend the H1B based on the pending PERM. If not, then you need both PERM and I-140 to get approved to file the 7th year extension. One option is to leave the country with at least 2 months prior to the 6th year end. Let the PERM and I-140 get approved. Return back to U.S by recapturing the 2 months that is left in your H1B CAP. Once you are inside U.S file the 7th year extension based on the approved I-140. Otherwise, stay 1 year outside U.S and come back on a fresh H1B with a new 6 year term (Start date will be Oct 1st or later).

[surisingh]

Thanks, I have a last question. My H1B is expiring on Feb 23, 2012 and waiting for Labor approval. Say If I leave the country on Feb 20, 2012, Can I come back to US once the labor get approved? My lawyers are saying that I can. Is it possible to do H1B extension for one year based on the labor approval in this case?

S

[shervin143]

No. The advisable thing is to leave now (have at least 2 to 3 months on the H1B 6 year period) and when the PERM gets approved, file a new petition to recapture the remaining 2-3 months left in the 6 year CAP and enter U.S when that petition gets approved. Once you are in U.S, you can file the 7th year extension. recapturing 2-3 days or apply for a visa for 2-3 days and getting itr approved is never going to happen.

Thanks, I have a last question. My H1B is expiring on Feb 23, 2012 and waiting for Labor approval. Say If I leave the country on Feb 20, 2012, Can I come back to US once the labor get approved? My lawyers are saying that I can. Is it possible to do H1B extension for one year based on the labor approval in this case?

S