Clarification on I-94 issual

[gkr747]

My current H1 6 yrs expires July 29, 2012...however my company has applied for 1 yr H1 extension of current petition but from Oct 2012-Oct 2013 (based on PERM will be pending for 365 days by Oct)..

question is if this H1 extension gets approved, can you please clarify which of the options will be the outcome.

A. will it be issued with the extended I-94 (I797A) with mentioned approval period as I am still currently in US in H1 status when it is filed and also that it is not a new H1 but extension? (this is what I want becos then I can do COS during the 2 month gap and be back on H1 in Oct without the need to go through the troubles of H1 stamping)

or

B. will it be issued without I-94 (I797B for consular processing) on the basis that there will be a gap after July even though I am presently in US with valid I94 and h1 status? (forcing me to go for stamping and then return again. I want to stay in US after july with a COS until Oct and do not want to end up going for stamping as much as possible)

Kindly let me know.

[shervin143]

It is no different than a normal extension. If all documents are in order and if approved, it will come with a new I-94. There is no need to do any COS. You will remain to be in H1B status and you can keep working. Oct 1st start date doesn't apply in your case as it is still on the same old CAP with extension beyond the 6th year based on pending GC process.

[gkr747]

thank you, pls confirm these 2

NOTE: incase you missed a detail, my PERM is applied on Oct 2011 and is still pending...so I wont be eligible for 1 yr extension after the current 6 yrs(july 29, 2012) UNTIL Oct 2012 as PERM 365 days passes by only on Oct 2012, thus creating a gap in H1 for 2 months.(aug & sept)

1. "It is no different than a normal extension. If all documents are in order and if approved, it will come with a new I-94." - so even though I may have to leave US between July 30 and September 30 due to lack of H1 status, it will not matter and I WILL GET A NEW I94 as it is extension and we already filed it with all needed docs...right?

2. you mentioned - "There is no need to do any COS. You will remain to be in H1B status and you can keep working.".....but my current H1 expires July 29 and I MUST WAIT after until Oct 1st for the 1 yr extension to start..there is no H1 approval in between. So I thought I either have to leave US for those 2 months or do a temporary COS to h4/f1/b2 and wait in US. I am confused as to why I dont need COS and can still remain in H1 as per your statement..pls clarify

[shervin143]

1. "It is no different than a normal extension. If all documents are in order and if approved, it will come with a new I-94." - so even though I may have to leave US between July 30 and September 30 due to lack of H1 status, it will not matter and I WILL GET A NEW I94 as it is extension and we already filed it with all needed docs...right?
>>> No. If you leave U.S, then the H1B will get approved for consular process. If your PERM has not completed 365 days, then you have to leave U.S and wait for the PERM to complete the 365 days and then file the 7th year extension from outside U.S. In this case, if approved, the H1B will not come with a new I-94. When you enter U.S on a valid H1B visa and petition, you will get a new I-94 at the POE.

2. you mentioned - "There is no need to do any COS. You will remain to be in H1B status and you can keep working.".....but my current H1 expires July 29 and I MUST WAIT after until Oct 1st for the 1 yr extension to start..there is no H1 approval in between. So I thought I either have to leave US for those 2 months or do a temporary COS to h4/f1/b2 and wait in US. I am confused as to why I dont need COS and can still remain in H1 as per your statement..pls clarify[/QUOTE]
>>> Ignore my previous reply. I did not know that you have to wait for 2 months in between for the PERM to complete 365 days before you can file the 7th year extension. If you leave U.S, the H1B will get approved for consular process. If you are in U.S in any other status, then a COS to H1B will need to be filed and if approved, H1B will come with a new I-94.