221g - I-797 work permit (petition) expiring

[happygolucky]

Hi Friends

I had come to India on a vacation in Feb and got 221g (pink) from Chennai consulate. My visa renewal status is still PENDING PROCESS.

Now my concern is that my I-797 is expiring in Aug. I have my I140 approved, so I am eligible for 3 year petition extension. But my HR is saying that I need to be in US for filing H1 extension. Is it true?

Suppose my visa renewal doesn't get approved by AUG and my I-797 expires, what option do I have?

[shervin143]

The time spent outside U.S can be always recaptured. Extension beyond the 6th year can then be files based on the approved I-140.

[happygolucky]

Hi Shervin143

I know that time spent outside US can be recaptured and also that H1 extension can be filed based on I140. But my scenario is this -

- I am stuck in India pending visa renewal (221g)
- H1b petition expires in Aug.

1. Is it possible for my employer to file for H1 extension if I am outside US?

2. If its not possible, then lets say 221g is finished only after Aug (lets say in Sept). Now my I-797 has expired. Can it be extended after it expires while I am still in India? Or should my employer file for fresh H1?

[shervin143]

Irrespective of whether you are inside U.S or not, the H1B petition can be filed under the same CAP until all 6 years are utilized in that CAP. In your case since you are outside U.S, the petition need to be filed for consular processing. When approved, you will need a valid H1B visa to enter U.S. Even a different employer can file the petition by recapturing the time spend outside U.S.

[happygolucky]

Thanks, please answer couple of more related questions.

- Can this filing for H1 extension through consular processing be done before the current petition expires? Or can it be done even after the expiry of current I-797?

- How long does this H1 extension through consular processing take? Is there premium processing for this also?

- Is there any impact of petition expiry on "Additional administrative processing" ? Do we need to submit new I-797 before expiry of current one?

[shervin143]

- Can this filing for H1 extension through consular processing be done before the current petition expires? Or can it be done even after the expiry of current I-797?
>>> Extension can be filed 6 months prior to the current petition expiry date. Since you are outside U.S, it can be filed after the expiry date as well.

- How long does this H1 extension through consular processing take? Is there premium processing for this also?
>>> 2-4 months by normal process and 15 days by premium.

- Is there any impact of petition expiry on "Additional administrative processing" ? Do we need to submit new I-797 before expiry of current one?
>>> No.