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All other Green Card Issues I-140/I-485, Family Based Green Card

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  #1 (permalink)  
Old 06-21-2016, 03:27 AM
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Default PERM not filed in 6th year (less than 5 months left)

I came to US in 3/2009 and left 12/2010 while an H1 extension is pending. This was denied as we couldn't provide client letter. During this denial I am in India. Again I came to US 8/2012... not sure how my employer filed this H1. All these days I am under impression that I am out of US more than a year and my max cap (6-yr) was reset.

9/2013 - I changed to employer B (full time). Now while filing for extension, the attorney I will be maxed out in 11/2016. What are my options. Our PERM process is snail-paced.

Attorney saying Texas has diff processes for PERM. Is that true. We applied for PWD in 2/2016 and got end of 4/2016. With the recruitment and other details to complete, he says we can file around August / September. What are my options.

I am going on vacation to India mid Aug thru mid-sep. I had never been out of US since 8/2012. Extending my vacation by another month-- will this buy me 2 months beyond Nov 2016?
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  #2 (permalink)  
Old 06-21-2016, 08:40 AM
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Originally Posted by dhar4voice View Post
I came to US in 3/2009 and left 12/2010 while an H1 extension is pending. This was denied as we couldn't provide client letter. During this denial I am in India. Again I came to US 8/2012... not sure how my employer filed this H1. All these days I am under impression that I am out of US more than a year and my max cap (6-yr) was reset.

9/2013 - I changed to employer B (full time). Now while filing for extension, the attorney I will be maxed out in 11/2016. What are my options. Our PERM process is snail-paced.

Attorney saying Texas has diff processes for PERM. Is that true. We applied for PWD in 2/2016 and got end of 4/2016. With the recruitment and other details to complete, he says we can file around August / September. What are my options.

I am going on vacation to India mid Aug thru mid-sep. I had never been out of US since 8/2012. Extending my vacation by another month-- will this buy me 2 months beyond Nov 2016?
Hi Friend

Sorry for your situation but from the information and dates you provided here, it seems like your attorney is right and you will be maxed out in 11/2016.

You are right in the sense that your clock was reset after staying one year abroad but since you had NOT consumed your 6 years on your original H1, your employer might have filed a cap-exempt H1B for you. In fact, he had both the options for you, capped h1 as well as cap-exempt, but he went through this route since it is a guarantee to get without cap. I am saying this because otherwise you wouldn't have come to US before October, 2012 of that year, and you said you came in Aug 2012 (so it was cap-exempt for sure). It also means that with this cap-exempt H1, you can only stay for the remaining period which is 4 years and 3 months since another 1 year and 9 months you already consumed earlier.

So, your employer should have filed PERM earlier than now since it has to be at least one year old or you should have I-140 approved. Now, best course of action is to get it approved asap, and get the I140 in premium. And, yes, extending your vacation will give you extra time before maxing out.

Hope it helps, good luck !!!
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Old 06-21-2016, 01:53 PM
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Thanks for quick reply.

As an option... if I am out f country and back in mid-October for say 2 months And we file an extension for these 2 months in non-premium.. can I stay in US and work beyond Nov 2016 + 2 Months and beyond until the H1 extension decision comes or until 180-days from the date of filing.. is this a legal option?

If my labor & i-140 are done before the H1 extension (to get the 60-days back) , we will file for 3-year extension.. worst case I wil leave US then.. is this all legal option?
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Old 06-21-2016, 10:47 PM
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Thanks Foia..

I had a meeting with Attorney this afternoon.... per them, I can continue to work remotely (from India) and still get paid until I get labor & 140... according to them, I have to leave early NOV, before the max cap date and still continue on the pay roll and get paycheck. But I will be working from India.. Is this really legal? My understanding is that my authorization to work for an US employer ends with the max cap date.. please clarify
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  #5 (permalink)  
Old 06-22-2016, 07:48 AM
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Originally Posted by dhar4voice View Post
Thanks Foia..

I had a meeting with Attorney this afternoon.... per them, I can continue to work remotely (from India) and still get paid until I get labor & 140... according to them, I have to leave early NOV, before the max cap date and still continue on the pay roll and get paycheck. But I will be working from India.. Is this really legal? My understanding is that my authorization to work for an US employer ends with the max cap date.. please clarify
Yes, that is perfectly legal. Max-out date is just for the H1B visa (authorization to stay), it is not related to working from outside US.
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  #6 (permalink)  
Old 06-28-2016, 07:43 AM
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If H1 status is for just staying in US, by what authorization I can be paid while working from India to US employer, after my 6-years of H1?

And if I leave after completing 6-years of H1, can we file H1 extension based on approved i-140? Or does he need 485? what are my options to come back, if I had to leave after my 6-years are complete?

I have about 4 months left of my 6-year max. please suggest
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  #7 (permalink)  
Old 06-28-2016, 09:34 AM
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The recommendation you got is correct. You don't need any authorization to work from India, since you are Indian citizen. You should be able to come back to US once I-140 is approved. Also, you can do I-140 in premium (two weeks) once the PERM is approved. I have been on the same boat.
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  #8 (permalink)  
Old 06-28-2016, 10:23 AM
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while working from India.. can my employer still pay me in US? I still be employed with the US company?
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  #9 (permalink)  
Old 06-28-2016, 11:59 AM
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I'm not a legal expert. But, that should be ok as far as I was told by my attorney.
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