My company screwed up. What options do I have?

[amarjain77]

Hello Friends,
My current company had filed my PERM about 13 months ago and had mentioned that it had been approved. However, very recently when I spoke with my company lawyer about extending my H1B past the 6th year, I discovered that the PERM had never been filed and there is no way I can file for an extension. It seems that the previous law firm employed by my current company had messed up and confused my application with some other candidate.
What can I do now since my 6th year ends on Nov 15th. I can recapture about 1 month I stayed abroad. Is there any way I can get a labor approved by Nov 15th or can I file an RIR? Can I apply in EB3 category to get my labor done faster? Can I get admission to any school and change my status to F1 and then apply for the H1B cap next year? What can I do to stay on in USA?

[mgmanoj]

Get the process started ASAP to file the labor in Perm only and once labor gets approved , Company should file I-140 in premium.
Get yourself ready to go back to home country and have company allow you to work from their during the wait time till labor and I-140 gets approved.
Once I-140 is approved - file extension of H1-b in premium
Restamp and come back.

Even in F1 - I think you have to get it re-stamped

Alternate option is - if you are married and if your wife is qualified for H1b - get her H1b Processed and you can move on to H4 and once all process done you can move back to H1 - in that case you don't have to be out of country.

[thankgod]

Hello Friends,
My current company had filed my PERM about 13 months ago and had mentioned that it had been approved. However, very recently when I spoke with my company lawyer about extending my H1B past the 6th year, I discovered that the PERM had never been filed and there is no way I can file for an extension. It seems that the previous law firm employed by my current company had messed up and confused my application with some other candidate.
What can I do now since my 6th year ends on Nov 15th. I can recapture about 1 month I stayed abroad. Is there any way I can get a labor approved by Nov 15th or can I file an RIR? Can I apply in EB3 category to get my labor done faster? Can I get admission to any school and change my status to F1 and then apply for the H1B cap next year? What can I do to stay on in USA?



Now a days Labor approval is taking just 4 to 8 weeks.

If you have approved labor. you can extend your H1B for a year.

So go and ask your employer to file the labor as soon as possible.

Still it is JULY, I think you will be alright.

[thomachan72]

Get the process started ASAP to file the labor in Perm only and once labor gets approved , Company should file I-140 in premium.
Get yourself ready to go back to home country and have company allow you to work from their during the wait time till labor and I-140 gets approved.
Once I-140 is approved - file extension of H1-b in premium
Restamp and come back.

Even in F1 - I think you have to get it re-stamped

Alternate option is - if you are married and if your wife is qualified for H1b - get her H1b Processed and you can move on to H4 and once all process done you can move back to H1 - in that case you don't have to be out of country.

Sorry to hear about this horrible horrible mistake.
How did the attorneys screw up this one??
Anyway might not be as simple as mgmanoj suggests. If 140 gets cleared and you are still in H1b status then you could possible apply for extension based on 140? Not sure about that either. However, if 140 is cleared after your H1b expires I am not sure whether you would be able to apply for another H1b without the year of living abroad.
As far as I know if you have used up the 6 years and have not filed for an extension based on 365 days pending labor or approved 140 then you are not eligible for continuous H1b status. You will have to spend one year outsided the country and apply "after" that one year of stay. In other words you cannot apply during that one year period and expect to come in immediately after that one year.
Goint to school on an F1 might not be an option if you want to get back on to H1 since you already used up the alloted 6 years? the year of living outside might come into play there. Again seek professional help ASAP from some reputed attorney. Atleast chat with them and see. Most important is not to loose hope and panic. Some solution will be there for your case.

[gcmangtai]

Hello Friends,
My current company had filed my PERM about 13 months ago and had mentioned that it had been approved. However, very recently when I spoke with my company lawyer about extending my H1B past the 6th year, I discovered that the PERM had never been filed and there is no way I can file for an extension. It seems that the previous law firm employed by my current company had messed up and confused my application with some other candidate.
What can I do now since my 6th year ends on Nov 15th. I can recapture about 1 month I stayed abroad. Is there any way I can get a labor approved by Nov 15th or can I file an RIR? Can I apply in EB3 category to get my labor done faster? Can I get admission to any school and change my status to F1 and then apply for the H1B cap next year? What can I do to stay on in USA?
Another option might be join other employer whose job advertisement requirements suits your skillset.... I guess this wud be the quickest option to start your labor. Good Luck!

[dkshitij]

The prevailing wage determination takes 4-6 weeks. Without this they cannot put notices, advertisement etc. The recruiting effort after prevailing wage determination takes 3 months. So a minimum 4 month period to just file the labor. I don't think you have a prayer of getting all this done before your H1-B expires: preparing labor, filing Labor, getting it approved, filing I-140, getting that approved and then extending H1-B.

Look for other alternatives like going back. If PERM was filed didn't you sign the application as required by law? Did you keep a copy? If they say it was approved, didn't they file an I-140 in 6 months? I mean your opening sentence did not make any sense at all: "My current company had filed my PERM about 13 months ago and had mentioned that it had been approved."

[mnkaushik]

You need to get your labor approved. Now to even apply for labor, you will have to take the steps mentioned in the post above. I dont know if you can make it in time, but the best bet is to give a shot. You dont need I 140 approved for extending H1B beyond 6 years. You need approved labor and based on that you can extend for a year at a time and once you have approved I 140, you can apply for 3 years extensions.

[green-card-2007]

how about looking into the option of working in "B-1 IN LIEU OF H-1B" Visa...just a suggestion

[sk.aggarwal]

Do you have anytime you can use for recapture? I would suggest look at that .. also ask to start perm process now ..... Ask employer to start the add process with your current salary and apply for PWD in parallel. I hope wage will come below your salary.

If I were you ...
1. See how much time I have to recapture
2. Instead of waiting .. go out of country and work from Canada or India for next 3-4 months
3. Come back around Oct and recapture few months.

I hope this helps... it is risky and your company messed up ... no two ways about it .. and I feel your pain

[thomachan72]

Do you have anytime you can use for recapture? I would suggest look at that .. also ask to start perm process now ..... Ask employer to start the add process with your current salary and apply for PWD in parallel. I hope wage will come below your salary.

If I were you ...
1. See how much time I have to recapture
2. Instead of waiting .. go out of country and work from Canada or India for next 3-4 months
3. Come back around Oct and recapture few months.

I hope this helps... it is risky and your company messed up ... no two ways about it .. and I feel your pain

Never thought about that. Seems to be quite workable. Stay outside for couple of months while the advertisement and labor is being done the come back and ask for H1 ext based on recapture of time spent abroad. Meanwhile if labor is cleared you could go for the full 1 year H1 extension?

[hsd31]

Now a days Labor approval is taking just 4 to 8 weeks.

If you have approved labor. you can extend your H1B for a year.

So go and ask your employer to file the labor as soon as possible.

Still it is JULY, I think you will be alright.


You need to get your labor approved. Now to even apply for labor, you will have to take the steps mentioned in the post above. I dont know if you can make it in time, but the best bet is to give a shot. You dont need I 140 approved for extending H1B beyond 6 years. You need approved labor and based on that you can extend for a year at a time and once you have approved I 140, you can apply for 3 years extensions.

These statements are incorrect. You can only file for a 1 year H1B extension based on you labor only when the labor was filed 365 days before the end of your 6th year of H1B. Else, if you filed your labor in the 6th year of H1B you need an Approved I-140 to file an H1B extension beyond the 6th year. You can extend your current H1B beyond the 6th year for a few more months by recapturing the time you were out of the country (vacations, etc). Contact a lawyer ASAP to discuss your options and start the paper work for your GC. If luck is on your side, you may get your I-140 cleared before Nov. I've a friend who went through a similar situation (Original PERM denied in 6th year) and he got his new PERM and I-140 approved in 4 months including the pre-PERM steps . If you find that by Oct start or mid you do not have the I-140 cleared, then you can leave the country and wait for the approval from your home country. That way you will not fall out of status with your H1B 6 years running out. Good luck.