Can I still work if my H1B visa is expired and my LC is pending?

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My H-1B visa will expire on Oct 27, 2008. I already used up my 6 years.My labor certification(PERM) is pending. I'm still working with my petitioner.Can I still work while waiting for the LC without leaving the country? thanks,Blue D

Attorney Answer

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tuart Jonas ReichImmigration AttorneyNew York, NY ·
Speak to a lawyer about your options, since a lot depends on timing. You need to do this quickly as your expiration date is getting close, or you may end up spending a long period of time waiting outside the U.S. The PERM labor cert by itself gives you no right to stay here or work, and if your H-1B expires you will be without legal status - no right to work while waiting or to be here at all. But, you might not be totally out of luck. Several possibilities here. First, you are only using time from the initial six years while you are physically in the U.S. - you can "recapture" time during the six years of the H-1B spent abroad. This includes vacations, overseas assignments, business trips, etc. Plus, at the very beginning of your six years, if you didn't change status here to the H-1B from something else but rather got the H-1B approved and then entered from abroad, the six years starts from when you first entered and not from the petition start date - you can "recapture" the difference as well. A lawyer needs to sit down with you, your H-1B approval notices and your passport and figure out what, if anything, can be recaptured. Next, once any recapture period has been determined, a lawyer needs to analyze the actual date your six years ultimately ends and relate that to when the PERM case was filed - if the PERM case was filed more than a year in advance, you may be entitled to an H-1B extension beyond the six years (since waiting for PERM approval, it would be extensions of a year at a time - if waiting for a priority date to become current it could be three years at a time). If none of this will help you, a lawyer needs to see if you qualify for some other nonimmigrant visa type, such as an O-1 Extraordinary Ability visa. If available for you, this could keep you here and working while you wait. Good luck!
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