H1B stamping in 6th year with 2 months left

[skish]

Hello Friends,

I am in the 6th year of my H1B visa and need to travel urgently to India. My H1b petition is valid upto 10-May-2012 however my 6 years period in US completed on 23-Mar-2012

Is it safe for me to travel to India in Jan 2012 and immediately go for stamping ?

My PERM application has also been filed and is pending audit however the mandatory 365 days completion for H1 extension will only complete on 27-Apr-2012.

Requesting your valuable opinions at the earliest.

Thanks,
Kishore

[shervin143]

You can go for the visa interview as long as the petition remains valid and you have all the required documents for stamping.

[skish]

Thanks a lot for clarifying Shervin.

I have another question, will my stay out of US (say for period of 2 months) contibute to my 6 yrs cap and enable me to apply for 1 yr extension beyond 6 yrs since my PERM is pending approval and it was filed in the 1st month of the 6th year ?

Thanks in advance,
Kishore

[skish]

Hello Seniors,

Please help me out with my query.

Thanks,
Kishore

[shervin143]

No. In order to get the 7th year extension based on the pending PERM, you should have filed the PERM 365 days prior to the 6th year beginning. In your case to get the 7th year extension, here is what you need to do.

Save at least 2-3 months in the 6 year CAP and leave U.S. Once the PERM gets approved, ask your employer to file the I-140 in premium processing. When I-140 gets approved (~15 days), file a new H1B petition to recapture the remaining 2-3 months in the old H1B CAP and re-enter U.S. Once you are in U.S, file the extension for the next 3 years based on the approved I-140.

[skish]

Thanks for your reply Shervin.

Here is what few of friends are suggesting. My company attorney is away due to the holidays hence i am unable to validate with her.

1. Leave the US immediately (around 5-Jan-2012).
2. By doing this the clock stops immediately on the 6 th year count.
3. Go for stamping immediately and get the visa stamped since my current petition is valid till 5-May-2012.
4. With the new stamping return to the US by around 15-Mar-2012.
5. By returning to US on 15-Mar-2012 , i would have saved around 65 days in my sixth year enabling the 6th year term completion around 5-Jun-2012 (currently it will be 24-Mar-2012) if i continue to stay in US only.
6. My company can file for a 1 year extension on 28-Apr-2012 since 365 days would have elapsed since my PERM filing was done on 27-Apr-2011.
7. By this way I can be in the US when my 7th year extenions is filed.

Please let me know if there could be any problem if i do the above. I really appreciate your valuable suggestions.

Thanks,
Kishore

[shervin143]

Was your PERM filed 365 days prior to the 6th year end?

Thanks for your reply Shervin.

Here is what few of friends are suggesting. My company attorney is away due to the holidays hence i am unable to validate with her.

1. Leave the US immediately (around 5-Jan-2012).
2. By doing this the clock stops immediately on the 6 th year count.
3. Go for stamping immediately and get the visa stamped since my current petition is valid till 5-May-2012.
4. With the new stamping return to the US by around 15-Mar-2012.
5. By returning to US on 15-Mar-2012 , i would have saved around 65 days in my sixth year enabling the 6th year term completion around 5-Jun-2012 (currently it will be 24-Mar-2012) if i continue to stay in US only.
6. My company can file for a 1 year extension on 28-Apr-2012 since 365 days would have elapsed since my PERM filing was done on 27-Apr-2011.
7. By this way I can be in the US when my 7th year extenions is filed.

Please let me know if there could be any problem if i do the above. I really appreciate your valuable suggestions.

Thanks,
Kishore

[skish]

Hi Shervin,

My 6th year ends on 24-Mar-2012(i.e if i continue to stay in US my 6th year would complete on 24-Mar-2012), the PERM was filed on 27-Apr-2011, ie almost 9 months ago.

Regards,
Kishore

[shervin143]

In that case, you can file the 7th year extension only after your PERM and I-140 approval.

Hi Shervin,

My 6th year ends on 24-Mar-2012(i.e if i continue to stay in US my 6th year would complete on 24-Mar-2012), the PERM was filed on 27-Apr-2011, ie almost 9 months ago.

Regards,
Kishore

[skish]

Hi Shervin,

I want to somehow make use of the option of getting the 1 year extension based on the PERM pending for more than 365 days clause.

365 days post PERM filing will be effective on 27-Apr-2012 (since PERM was filed on 27-Apr-2011), and since i plan to stay out of the country for some time (5-Jan-2012 to 5-Mar-2012) my
6 th year will complete effectively complete on 24-May-2012.

I plan come back to US in Mar-2012 post my visa stamping based on my current H1B petition which has a validity till 10-May-2012 so i am assuming i can get successful visa stamping when i go to India in Jan-2012.

Can my 7th yr extension be filed based on the above condition.

Sorry if i am being too confusing.

Thanks,
Kishore

[skish]

Hi Shervin,

Requesting your advice on my query,

Thanks a lot in advance,
Kishore

[shervin143]

I have told you clearly. It doesn't work that way. Your PERM should have been filed 365 days prior to the 6th year end to get the 7th year extension. Time spend outside U.S will have no impact. Like I have mentioned earlier, leave the country with 2-3 months left and come back by recapturing it when your PERM and I-140 has approved and then after completing the 6 years, file the 7th year extension based on the approved I-140. If you are still in doubt,then consult an immigration attorney.

Hi Shervin,

I want to somehow make use of the option of getting the 1 year extension based on the PERM pending for more than 365 days clause.

365 days post PERM filing will be effective on 27-Apr-2012 (since PERM was filed on 27-Apr-2011), and since i plan to stay out of the country for some time (5-Jan-2012 to 5-Mar-2012) my
6 th year will complete effectively complete on 24-May-2012.

I plan come back to US in Mar-2012 post my visa stamping based on my current H1B petition which has a validity till 10-May-2012 so i am assuming i can get successful visa stamping when i go to India in Jan-2012.

Can my 7th yr extension be filed based on the above condition.

Sorry if i am being too confusing.

Thanks,
Kishore

[skish]

Hi,

Sice my PERM application has gone for audit, my company tells me it could take a lot of longer (may be 6 months) to get a decision. By Apr 2012 it will comple 365 days since it has been filed.

Can i leave the country now and come back after applying for a one year extension in May 2012 ?. My company is ready to file the extension in premium mode in Apr 2012.

Thanks !

[skish]

Hi Seniors,

Please advise !

Thanks in advance,

[shervin143]

You don't seem to get the point. I reccommend you consult a good immigration attorney.