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I140 Process - Out of Country/H1b Expire

Discussion in 'Immigrant labor certifications (PERM)' started by ramkumar1, Jan 29, 2012.

  1. ramkumar1

    ramkumar1 Member

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    Thanks Ron for all your help. Looks like i won't be able to get PERM approval before my H1b expire (with recapture time). Having said that, can my employer file I140 and H1b extension once perm is approved and I'm out of country. Please note my perm does not meet 365 day rule...It was filled couple of month back only. Would really appreciate for your reply. Thank you in advance.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    Yes, your employer may do exactly that. As soon as the new petition is approved, you may return to work.
     
  3. ramkumar1

    ramkumar1 Member

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    Re: I140 Process - Out of Country/H1b Expire

    Thanks Ron....Trust me you are doing a very good service to all aliens who does not have complete knowledge of complex laws/rules.....Pl accept our best wishes from bottom of our heart. Thank You!!
     
  4. ramkumar1

    ramkumar1 Member

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    Re: I140 Process - Out of Country/H1b Expire

    one more point Ron, when you get the time pl help me. Is it advisable to leave country before one - two week h1b expiry or should i contd my work till second last date of h1b expiry....
     
  5. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    By law, you have ten calendar days in which to leave after your H1B status expires. As long as you leave on or before the tenth day following the expiration of your status, you will remain in lawful status.
     
  6. sundevils

    sundevils Junior Member

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    Re: I140 Process - Out of Country/H1b Expire

    Hi Ron:

    My question is regarding how soon one can re-enter after I-140 approval? Once i am out of country, i need Visa to re-enter. I need to extend H1B based on approved I-140 to get a Visa. After completing 6 year on H1b, one has to wait 365 days from last exit date or 365 days from the Priority Date to get new H1B. Isn't it? If the person's priority date Dec 1st 2011 and he leaves the country prior to applying for I-140, he needs to wait until Dec 1st 2012. Am i right?

    2nd question is, While I-140 is in process, if I-94 expires, how long one can stay legally? Thanks much for your time & response is much appreciated.
     
  7. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    Once your I-140 is approved, your employer may then file a new H1B petition on your behalf. When it is approved, you need to get a new H1B visa. At that point, you may return.
     
  8. sundevils

    sundevils Junior Member

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    Re: I140 Process - Out of Country/H1b Expire

    Thanks much Ron. After completing 6 years on H1B, one has to wait 365 days to get new H1B. Lets say one's 6th year ends by 29th Feb 2012 and exits from US and perm PD is Dec 1st 2011. Lets say PERM & I-140 both got approved by May 2012. When employer files for new H1B based on approved I-140, the earliest start date for the new H1B would be Dec 1st 2012 based on PERM 365-day rule. Once the person is out of US, he has to wait for 365 days to get new H1B. Isn't it? It's very confusing. Please clarify.
     
  9. ramkumar1

    ramkumar1 Member

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    Re: I140 Process - Out of Country/H1b Expire

    No, it is not correct and one can immediately file for H1b visa and return back. Only conditions are

    a) PERM approved
    b) I140 approved
    c) You must have job.....

    But this is Ron Forum and will wait for his verdict.....and second i'm not attorney also....
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    First, only count the time actually spent in the U.S. toward the six year limit. Any time outside the U.S. must be subtracted. Second, if you do not have an approved I-140, you must wait outside the U.S. for a full year before an employer may file a new H1B petition on your behalf. If, however, an I-140 is approved on your behalf, you become exempt from the six year limit immediately. This can happen before you leave the U.S., after you have left, but before you have been gone for one year, or even after you have been gone for a year or more.
     
  11. ramkumar1

    ramkumar1 Member

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    Re: I140 Process - Out of Country/H1b Expire

    Hi Ron,
    I am slightly confused here.You mean one has to get I-140 approved before moving out of US.
     
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    No, I'm saying that you cannot get an extension of H1B status beyond six years unless (a) an I-140 has been approved on your behalf; or (b) you remain outside the U.S. for at least one full year. As soon as either condition has been met (it doesn't matter which), you may apply for a new H1B.
     
    rafi likes this.
  13. warrdil

    warrdil Junior Member

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    Re: I140 Process - Out of Country/H1b Expire

    Ron,
    I have a question in this regard. My I-140 is approved, But I have exited the country since my H1b expired earlier. Now my employer is planning to file for a new H1B petition based on my I-140 approval. Will I be still subject to the yearly cap on H1b for the current year?
     
  14. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Re: I140 Process - Out of Country/H1b Expire

    If you have been outside the U.S. for less than a year, you won't be subject to the new cap.
     
  15. rafi

    rafi New Member

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    hi Ron, first of all thank you for making it easy for us to understand the process in simple terms. I have slightly a different question to you. My Perm is Approved, I am out side of US for more than 1 year now. My 1 140 is with USCIS and waiting for the approval. My question is , can I apply for an H1 extension based my previous expired petition ( expired 31-Jan-2013) or do I have to apply a brand new H1 and wait for the lottery ? . Could you please provide the details ? Thank you again
     
  16. Ron Gotcher

    Ron Gotcher Attorney at Law

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    As soon as your I-140 is approved, your employer may file a petition extension for you.
     
  17. rafi

    rafi New Member

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    hi Ron, thank you. 140 approval might take a little bit of time. I have PERM and the 140 Receipt notice, can I file the extension based right away on these two documents?
     
  18. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Not unless the PERM is more than a year old. You might want to consider upgrading the I-140 to premium processing.
     
  19. rafi

    rafi New Member

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    ohh okay, the one year is after the date of approval or the date of priority? . In my case the priority date is 2013-feb, but was approved in 2014-july . More than after 1 and half year. I could not file the 140 under premium due to internal logistics of the current employer. So based on priority date i am more than a year old,, in this case can i have my employer file based in this for 1 year extension ? Thank you again for your quick response. :)
     
  20. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If a PERM has been pending more than a year, you are exempt from the six year rule - irrespective of when it is approved.
     

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