H1B extended for 7th year even though PERM pending (365 day rule doesn't apply)

[sameer3.b]

Hi,

Dates at a glance:

PERM filed: May 2013
H1B max out: 31-Aug-2013
Received H1B extension until July 2014 when filed an extension to recapture time until 31-Aug-2013. <- this is the surprising part.

My case:

I am currently in India awaiting my PERM approval. My H1B max out date (including re-capture) is 31-Aug-2013. My PERM was filed in May 2013 and there is no response for my PERM filing as of today.

Mine is a strange situation. My company applied for my H1B extension in July 2013 to recapture time that I spent in India. With this recapture time, my H1B can be extended only until 31-Aug-2013. But, I got a 1-year H1B extension until July 2014 which is little surprising. I now have the I797 with the expiration date as July 2014.

With this H1B extension approval until July 2014 (even though my 6 year max out is only until 31-Aug-2013 with my Labor filed in May 2013), can I go for Stamping? Would my visa stamping be rejected because I am technically not eligible for a 1 year extension because my Labor wasn't filed 365 days before the 6-year max out date?

Any help would be greatly appreciated and many thanks for your time!

[raghvi]

Hi,

Dates at a glance:

PERM filed: May 2013
H1B max out: 31-Aug-2013
Received H1B extension until July 2014 when filed an extension to recapture time until 31-Aug-2013. <- this is the surprising part.

My case:

I am currently in India awaiting my PERM approval. My H1B max out date (including re-capture) is 31-Aug-2013. My PERM was filed in May 2013 and there is no response for my PERM filing as of today.

Mine is a strange situation. My company applied for my H1B extension in July 2013 to recapture time that I spent in India. With this recapture time, my H1B can be extended only until 31-Aug-2013. But, I got a 1-year H1B extension until July 2014 which is little surprising. I now have the I797 with the expiration date as July 2014.

With this H1B extension approval until July 2014 (even though my 6 year max out is only until 31-Aug-2013 with my Labor filed in May 2013), can I go for Stamping? Would my visa stamping be rejected because I am technically not eligible for a 1 year extension because my Labor wasn't filed 365 days before the 6-year max out date?

Any help would be greatly appreciated and many thanks for your time!

If you feel you are not eligible, why you want to risk going for the visa stamping? Seems this was a USCIS oversight in granting you extension till July 2014. Remember if you are sure, then better not try to take advantage of this error. If they find out you will end up in a 221G for a long time. Having time remaining on your H1 is a good thing as in May 2014 you can apply for recapture and extension just that your employer attorney has to word the documentation correctly to avoid confusion.

This is my opinion not legal advice.