Travelling to India even though PERM is not approved

I am from an Indian company(ABC) working in USA. My PERM has been filed in Oct/2014 and my 6th year of H1 was completing on Dec/2014. So PERM was filed during 5th year itself. As of Jan/2016, i am on one year of H1 extension after completing 6 years and PERM is still not approved.

Assume that ABC company agrees to continue my GC process even though i am outside USA. My questions are

  1. As PERM is still pending, can i travel to India and work from India location(ABC company) for about 12 months then return to USA, by then PERM and I140 would have been approved(assumption).

  2. In continuation with point 1, will i be getting 3 years of H1 renewal with same GC process and not apply for fresh H1 quota as i’ll be in India for so many months?

  3. Will there be any problem if i am in India and my PERM approves and ABC company files I140?

  4. Is it better to wait for PERM approval then travel to India for 12 months OR is it better to travel to India after I140 approves? Is there any difference in travelling and staying in India after different stages of Green card?

My intention is to travel to India for 12 months then return with same GC process and not apply for fresh H1 quota.

Thanks in advance for your replies.

Before I answer the questions, I have one for you. Are you planning to leave US only b/c your PERM is pending and I-140 has not been filed/approved?

As your PERM has been pending for more than 12 months (looks like its in audit review), your employer can continue to file 1 year extensions for you.

No, it is not because of my PERM is pending. I wanted to take a personal break and stay in India. Thats the reason i can move dates to travel to India and either go to India after PERM is approved or after I140 is approved.

And regarding audit, yes i have received a audit review in Mar/2015 and it was replied during that time. But as you said my employer has applied for 1 year ext and it is approved.

  1. You can leave US while your PERM is pending. Once approved I-140 can be applied even if you are not currently inside US.

  2. Yes, employer can file for 3 year extension once I-140 gets approved.

  3. I don’t think so

  4. I don’t see advantage of one over the other. This is a personal decision. Keep your employer/attorney in loop and see if they have any additional guidance.

Thanks Saurabh for your comments.

Thanks Saurabh. I had one more question on same lines as point number 1.

  1. Is there a limitation on number of months/years i can stay in India?
    For ex: Can i stay for 3 years in India and return to USA after 3 years on the same green card process?
    Will there be any cancellation on my I140 process if i am staying in India for longer time?
    My question would be - will my I140 processing be active even though i am in India for any number of years?

I don’t know of any limitation. PERM should get processed soon as the current processing time for audited petitions is November 2014, and yours was filed in Oct 2014. I-140 would get processed in 6 months or so.

While you are outside of US, these can remain active and valid as long as employer still supports your employment. Later, they can file 3 year extension for you when you are ready to return.

Like I said, do talk to your attorney before making long term offshore plans.

Thanks again Saurabh. I had one more question.
You mentioned that 3 year extension has to be filed when i want to return.
My question is
what if my visa has expired by the time i want to return back to USA.

  1. Should i go through the lottery system
  2. OR i can apply for H1 visa just based on my I140 approval even though i dont have a valid visa status?

Based on I-140 approval, you don’t need to go through the cap again and a cap-exempt petition can be filed for you. Once approved, you will have to appear for visa stamp and can then enter US to work.

@kiran_dj as mentioned in this post did u take a break and went to India as mentioned in your posts? If so I have a question…
I understand i140 can be applied when you are in India, but is there a hard rule that you need to give minimum 1 year break before coming back to US? I hear there is something called cooling period so wanted to know if that applies for this situation.

Thanks in advance!