Pending PERM, End of 6 year H1-B visa, 1 year stay out of US

[bhaskar91]

Dear members,

Here is my situation.

1. My PERM is filed in Oct 2012, 6 months before end of 6 year H1-B visa cap.
2. My PERM application is picked up for random audit after a 3.5 months waiting period
3. Audit date is Jan 2013 and response to the audit query was sent back in Jan 2013 itself
4. My continuous 6 year stay as a H1-B applicant in US ended on April 2013.
5. I left the country in April 2013 itself after using all 6 years
6. Now the October 2012 applications are being processed by DOL
7. I didn't get a reply from DOL yet.
8. I'm close to completing my 1 year out of US in another 2-3 months.

Here is(are) my question(s):
1. Can I come back to US on a fresh H1-B visa with 1 year extension (after April 2014)?
2. If PERM application is denied or sent to "Supervised Recruitment" or "BLACA" then can I still come back to US based on the 1 year stay out of US?
3. If 2 is yes then, can we still continue with the same PERM process or repeat the whole process once again?
4. If pending PERM application is sent to "Supervised recruitment" or "BLACA" then how much more time would it take to get a reply from DOL?
5. What should be done in such situation?

Thanks,
Ravi

[raghvi]

Dear members,

Here is my situation.

1. My PERM is filed in Oct 2012, 6 months before end of 6 year H1-B visa cap.
2. My PERM application is picked up for random audit after a 3.5 months waiting period
3. Audit date is Jan 2013 and response to the audit query was sent back in Jan 2013 itself
4. My continuous 6 year stay as a H1-B applicant in US ended on April 2013.
5. I left the country in April 2013 itself after using all 6 years
6. Now the October 2012 applications are being processed by DOL
7. I didn't get a reply from DOL yet.
8. I'm close to completing my 1 year out of US in another 2-3 months.

Here is(are) my question(s):
1. Can I come back to US on a fresh H1-B visa with 1 year extension (after April 2014)?
2. If PERM application is denied or sent to "Supervised Recruitment" or "BLACA" then can I still come back to US based on the 1 year stay out of US?
3. If 2 is yes then, can we still continue with the same PERM process or repeat the whole process once again?
4. If pending PERM application is sent to "Supervised recruitment" or "BLACA" then how much more time would it take to get a reply from DOL?
5. What should be done in such situation?

Thanks,
Ravi

1. If you stay out of US for one entire year, you reset you clock, and if you apply new H1 after that stay you are eligible for fresh H1 which can be extended till its 6 Years completion. But do remember next cap will start only in April 2014 and you can work on that H1 only from Oct 2014.
2. Yes. Your PERM wouldnt have relationship with your new H1. H1 process and GC process are more or less independent.
3. If PERM is denied then if you dont challenge it you effectively have to apply a new one which will have its own new priority date.
4. It could take anywhere from few months to a year or so.
5. You could have done two things : A) Instead of exhausting the entire 6 Years, left US in March 2013 with some time still remaining on the H1 so in Oct 2013 (after 365 days PERM pending from Oct 2012) you could have extended the original H1 for 1 Year and be in US in Oct/Nov 2013 itself. Do confirm from your lawyers if the entire 6 yera has exhausted or still some time is remaining
OR
B) Left US in March 2013 and applied for fresh H1 in April 2014 with fresh 6 Year tenure. This would allow to be in US earliest Oct 2014.

Now I really dont know if you are eligible to apply in April 2014 as its recommended practice to apply fresh H1 AFTER completion of the 1 Year outside stay. So effectively if you left US on April 1st 2013, you can apply on April 1st 2014 or later, if you left on April 15th 2013 then you can apply on 15th April 2014 or later, but for that the Cap should be open till April 15th 2014.

Still I would suggest you seek to apply fresh H1 on 01-April-2014.

This is my opinion not legal advice.

[bhaskar91]

Thank you Raghvi for your answers..

I have one more question. I did ask about Fresh new H1-B visa after 1 year of stay out of US.

I want to know:

1. If I can use the same H1-B visa with 1 year renewal each time after my 1 year stay out of US?
2. If this case can we use the same PERM process?

Thanks,
Bhaskar

[raghvi]

Thank you Raghvi for your answers..

I have one more question. I did ask about Fresh new H1-B visa after 1 year of stay out of US.

I want to know:

1. If I can use the same H1-B visa with 1 year renewal each time after my 1 year stay out of US?
2. If this case can we use the same PERM process?

Thanks,
Bhaskar

1. I didn't understand, if it is a new H1, it would be valid for 3 Years, with possibility of extension for another 3 Years, irrespective of PERM status. PERM need comes only if you are using the Old H1.
2. PERM can continue.

This is my opinion not legal advice.