I am in the 6th year of my H1B and it expires on 1/26/14. The date already includes recaptured time I spent visiting China over the years. My company submitted the PERM application on 7/16/13. Based on the current processing time, it appears that it may be approved right around my H1B expiration date. My understanding is that I have the following options. What is everyone's recommendation as the best course of action?
A. Ask company for permission to work from China for a couple of months before the end of the year. Return to the U.S. in January. Extend the H1B status to end of March by recapturing time abroad. Pray that the PERM would be approved and the new H1B extension is approved by then.
-Fine, and then after the PERM approval, use premium processing to file I-140 and get it in 15 days. Then, file H-1 extension for three years beyond the 6 year limit using the approved I-140..
B. Stay in the U.S. and change to H4 when time runs out. The company would have to terminate my employment and re-hire me when the PERM is approved and H1B extended.
-Fine, but had better go to China to get the H-4 visa to reenter US. Because when you leave US for China, your H-1 clock stops. If you file change of status inn US, your H-1 clock still run until your H4 application is approved and thus, your 6 year H-1 time may run out.
After the PERM approval, use premium processing to file I-140 and get it in 15 days. Then, file H-1 extension for three years beyond the 6 year limit using the approved I-140..
C. What else can I do? How can I remain working? I recall seeing a 240-day rule somewhere that allows someone to continue working even when the current status expires, as long as there is a pending application with USCIS. Is that an old ruling? I do understand that you may extend the H1B for a year if the PERM application is pending for more than a year.
-If your PERM is approved before your h1 reaches the 6 year limit (e.g. in December or earlier), then you just file I-140 and use premium processing to get it approved in 15 days. Then, file your H-1 extension for 3 years beyond the 6 year limit using the approved I-140. Thus, you don't need to leave US or change your status to H4.
Otherwise, make any one of the above two choices (A or B).
