PERM filed and pending, Can I travel to India and re-enter while it is pending?

Employer ABC filed my PERM/Labor application in last Week of November(Nov 23rd) 2015. My H1B Visa(same employer ABC) and I94 expires on October 3rd, 2016. I have following questions -

  1. Can I travel to India in May 2016 and come back to US after a stay of 3 weeks, even though the PERM is in progress?

  2. If I get married during that stay and re-enter US, will that affect PERM process?

  3. I recently changed my employer from XYZ to ABC, if I go back to India, do I need to get the visa stamped or the approved I-797 (Expiry Date - October 3rd, 2016) is sufficient to re-enter?

  4. If the PERM doesnt get approved before my visa and I-94 expiry date(October 3rd, 2016), and if I have to go back to India, can I wait in India till my PERM gets approved and then file I-140 and then file for H1B extension based on I-140 approval? if yes, then once H1B gets approved based on H1B, while I am in India, do I have to wait for 1 year to re-enter US, as I have already completed 6 years of H1B stay? Or can I come back to US immediately based on H1b extension approval?


  1. Yes, you can.

  2. No, it will not have any effect.

  3. If the visa of employer XYZ is still valid, you can use it. No need of stamping again, if the XYZ visa is still valid. But, you need to have the original approved notice of ABC company at the port of entry along with the XYZ valid visa stamp. I have done this many times, myself. If ABC is a consulting company, and you work at a client location, be prepared with necessary documents and questions that will be asked at the port of entry.

4.I may not be the right person to answer this, all i know is , you need to have your I-140 approved by Oct 3rd 2016, to have your H1B extended. You may check with your company lawyer, or may be somebody else in this forum will answer that for you.

  1. I assume you are referring to 7th year extension.
  • If PERM is denied, then 7th year extension cannot be granted.
  • If PERM is approved and I-140 is approved, you are eligible for 1 year extension
  • If I-140 is approved, you are eligible for 3 year extension
  • If PERM is pending for more than 12 months, you are eligible for 1 year extension

Thanks Saurabh.

If I travel to India in April or May 2016 for 3 weeks, will there be any problem wile coming back at the Port of Entry, as that time I will have only few months left on my H1B? Also the old company’s Visa stamp on my passport has expiry till 19the July 2016. So if I go for the stamping in April or May 2016, will there be any problem as that time I will have only few months left on my H1B(6 years max stay). Note : I797-A petition is valid till October 3rd, 2016

They would still process your visa stamping application even if it expires within next couple of months. If asked, you can say your PERM process is pending. There shouldn’t be an issue w/ entry as well and they should issue I-94 based on your current 797 expiration date. Discuss w/ your attorney before leaving US.