Can Re-enter in USA 30 days before H1B visa expires?

[deams1]

Hi All,
My PERM PD is 05/25 and My H1B expiring 11/06 (have visa stamped/-797 valid till 11/06). I have 3 weeks in hand to recapture time. My lawyer suggesting to go to India for another 3-4 weeks to avoid any max out hence planning to go India from 09/01 to 10/01. Please let me know if there is any issue if I re-enter in US 30 days prior to my H1B VISA expiration date? Will Department of Homeland Security officer question on this?
Thanking you in advanced!

[raghvi]

Hi All,
My PERM PD is 05/25 and My H1B expiring 11/06 (have visa stamped/-797 valid till 11/06). I have 3 weeks in hand to recapture time. My lawyer suggesting to go to India for another 3-4 weeks to avoid any max out hence planning to go India from 09/01 to 10/01. Please let me know if there is any issue if I re-enter in US 30 days prior to my H1B VISA expiration date? Will Department of Homeland Security officer question on this?
Thanking you in advanced!

Technically you can but you will get I94 only till visa expiry. I don't know how going out for only 3-4 weeks will help with PERM pending only for a few months.
How long have you already spent in H1 status?

This is my opinion not legal advice.

[mindrd]

more information

We need more information to answer this question. when is your 6 years completely up, what did you apply for, and what are the requested dates on the new H1B petition. Also, what do you mean PERM PD; is this the Permanent Labor Cert or you already have an approved I-140?

You are allowed to enter the US on a Visa, however, you should have a receipt notice that indicates you have a pending 1-129 pending with USCIS. The notice and your current visa is enough evidence that you have legitimate business.

[deams1]

Technically you can but you will get I94 only till visa expiry. I don't know how going out for only 3-4 weeks will help with PERM pending only for a few months.
How long have you already spent in H1 status?

This is my opinion not legal advice.

Hi Raghvi,

Thank you for your reply

My H1B 6 years max expiring on 11/06 excluding recaptured time. I have 3 weeks unused time and if I go out of US for another 3-4 weeks then total recapture time will be 6-7 weeks so that my lawyer can use this period to extend my H1B visa in premium process. Once it is approved I can stay here till end of Dec month and we are hoping till that time my PERM will be approved.
So I am just wondering if I can re-enter in US if I have 30-35 days left on my VISA?

[deams1]

We need more information to answer this question. when is your 6 years completely up, what did you apply for, and what are the requested dates on the new H1B petition. Also, what do you mean PERM PD; is this the Permanent Labor Cert or you already have an approved I-140?

You are allowed to enter the US on a Visa, however, you should have a receipt notice that indicates you have a pending 1-129 pending with USCIS. The notice and your current visa is enough evidence that you have legitimate business.

Hi Mindrd,

I didn't apply for H1B extension yet, only filed PERM (labor cert) on 05/25 (PD - priority date is 05/25) and waiting for approval. Once it is approved my lawyer will file for i-140 approval in premium process.My H1B 6 years max expiring on 11/06 excluding recaptured time. I already have 3 weeks unused time and if I go out of US for another 3-4 weeks then total recapture time will be 6-7 weeks so that my lawyer can use this period to extend my H1B visa in premium process. Once it is approved I can stay here till end of Dec month and we are hoping till that time my PERM will be approved.
Currently on my i-797/passport the stamped date is 11/06 so this is the only evidence I have. My company will provide me letter that my extension will be filed immediately once I return back.
So I am just wondering if there is any issue if I re-enter in US 30 days prior to my H1B VISA expiration date?

[raghvi]

Hi Raghvi,

Thank you for your reply

My H1B 6 years max expiring on 11/06 excluding recaptured time. I have 3 weeks unused time and if I go out of US for another 3-4 weeks then total recapture time will be 6-7 weeks so that my lawyer can use this period to extend my H1B visa in premium process. Once it is approved I can stay here till end of Dec month and we are hoping till that time my PERM will be approved.
So I am just wondering if I can re-enter in US if I have 30-35 days left on my VISA?

It's highly unlikely that PERM will get approved within 6 months of application, you can try your luck. And further, in order to stay beyond your H1 max out(including recapture time) you would need I140 to be approved. But apart from doing what lawyer is suggesting, I dont see much options. Yes, you can stay outside US longer to increase the recapture time, but might be a good idea to start building a plan with employer as to what to do if I140 approval does not come in time.

This is my opinion not legal advice.

[deams1]

It's highly unlikely that PERM will get approved within 6 months of application, you can try your luck. And further, in order to stay beyond your H1 max out(including recapture time) you would need I140 to be approved. But apart from doing what lawyer is suggesting, I dont see much options. Yes, you can stay outside US longer to increase the recapture time, but might be a good idea to start building a plan with employer as to what to do if I140 approval does not come in time.

This is my opinion not legal advice.

Hi Raghvi,

Thank you for your quick reply.

If I dont get my PERM/i-140 approval till 10/01 then can my lawyer apply for H1B extension of my unused period (6-7 weeks) in premium process?

[raghvi]

Hi Raghvi,

Thank you for your quick reply.

If I dont get my PERM/i-140 approval till 10/01 then can my lawyer apply for H1B extension of my unused period (6-7 weeks) in premium process?

Yes.

This is my opinion not legal advice

[mindrd]

Extension without approved I-140

The issue here is that the Labor Certification filed on 5/25 should have been filed at least one year before your 6 years max occurs. However, this did not happen. As a result, even with your 6-7 weeks recapture time, you can only come back on the H1B extension once 365 days passed and you have not exhausted your complete 6 years. Even if your company files the 140 once the labor cert is approved, you will be only be allowed to come back 5/24/17 to start your one year extensions. Your attorney is wrong, as a pending I-140 will not allow you to extend your employment without leaving the country and having your 6 years limit end after May 24, 2017. It is highly unlikely, extremely unlikely to get your labor cert and your I-140 approved in time before your 6 years are maxed. your best bet is to leave and not to come back until about 5 to 6 weeks before May 24, 2017, as this will allow you to request an extension under AC21-106 for one year increments.