H-1B Maxout Planning: PERM in Progress and I-140 Filing Timeline

A worker with an H-1B status set to max out in October 2026 is navigating a common but complex situation: their PERM labor certification was filed in January 2026, and given current processing times of 16-17 months, approval is unlikely before the H-1B expiration. The worker is considering departing the U.S. and returning once PERM is approved. A key question raised is whether H-1B time must be preserved prior to maxout in order to file the I-140 immigrant petition. The answer is no — the I-140 can be filed independently of H-1B status, as it is an immigrant petition and not tied to nonimmigrant status. PERM approval and a subsequently filed I-140 do not require the beneficiary to be in valid H-1B status at the time of filing. However, practical considerations are important. If the worker departs the U.S. after H-1B maxout and wishes to return, they would need a valid visa and status to reenter — typically an H-1B extension (if eligible under AC21 or other provisions) or a different visa category. Without an approved I-140 with a priority date that allows for H-1B extensions beyond the 6-year cap, reentry options may be limited. The manager's suggestion to travel 2-3 months before maxout may relate to ensuring the worker has flexibility to return if needed, but it is not a legal requirement for I-140 filing. Workers in this situation should consult an immigration attorney to evaluate options such as H-1B cap-gap provisions, AC21 portability, or alternative visa pathways while the green card process continues.