7th Year H1 extention question

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dsatish

Registered Users (C)
My colleague(American citizen of indian origin) asked me a question that relates to his brother . I think only those who have experienced the 7th year H1 extention can answer this question.
The person is completing 6 years on H1 as of March'2005. He has filed for his LC in 2003 and it is still pending. So he is eligible for 7th year extention. The problem is with his wife's 7th year extention. She came on H4 initially and after 1 yr she has converted to H1. Her lawyer is saying that her husband's pending LC will not help her stay here beyond 6 yrs (March'05) because she has not filed LC on her own. She can how ever convert back to H4 before March'05. That is what her company's lawyer told her.
The couple have taken an expert opinion from a noted lawyer and the noted lawyer told that if her husband gets 7th year extention, then she is also eligible for H1 7th year extention. But still the company lawyer is not agreeing to this argument. He refuses to accept that. Did any of you face this type of situation ? If so, please clarify.
 
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dsatish said:
My colleague(American citizen of indian origin) asked me a question that relates to his brother . I think only those who have experienced the 7th year H1 extention can naswer this question.
The person is completing 6 years on H1 as of Matrch'2005. He has filed for his LC in 2003 and it is still pending. So he is eligible for 6th year extention. The problem is with his wife's 7th year extention. She came on H4 initially and after 1 yr she has converted to H1. Her lawyer is saying that her husband's pending LC will not help her stay here beyond 6 yrs (March'05) because she has not filed LC on her own. She can how ever convert back to H4 before March'05. That is what her company's lawyer told her.
The couple have taken an expert opinion from a noted lawyer and the noted lawyer told that if her husband gets 7th year extention, then she is also eligible for H1 7th year extention. But still the company lawyer is not agreeing to this argument. He refuses to accept that. Did any of you face this type of situation ? If so, please clarify.
Click to expand...

firend of mine had same problem . she went to india nad convertted to H-4 . then they filed here 485 recently , now she is working . hope this helps
 
canus_immi said:
firend of mine had same problem . she went to india nad convertted to H-4 . then they filed here 485 recently , now she is working . hope this helps
Click to expand...

So it looks like your spouse's 7th year extention does not help you get a 7th year extention. Any one else has any other experiences ?
 
Spouse's 7th year extension does help to get the extension for her, but only for H4, not H1. The company attorney is correct.
 
Confused

I am a bit confused....If the spouse has used only 1 year on her H1, why will her status be dependent on her husbands H1.

Correct me if I am wrong...Isn't H1 is an independent visa??? What does it have to do with the husbands status?
 
ar888 said:
Spouse's 7th year extension does help to get the extension for her, but only for H4, not H1. The company attorney is correct.
Click to expand...

Thanks ar888. Have you seen any cases like this ?
 
NYGCSeeker said:
I am a bit confused....If the spouse has used only 1 year on her H1, why will her status be dependent on her husbands H1.

Correct me if I am wrong...Isn't H1 is an independent visa??? What does it have to do with the husbands status?
Click to expand...

She came to USA along with her husband on H4 and after 1 year she has converted to H1. So far she has used 4.5 yrs of H1 + 1 yr of H4. The 6 year limit applies to H1 + H4 period. So she already used 5.5 years in H4 + H1 status.
 
Still Confused

Satish.....A Hypothetical case:

If I am here in the US on a H1 for the past 1 year, and If I marry a girl who has been in US for 5 years on H1, and she converts to a H4 after marriage...

Will she be given a H4 only for a year? What happens after that...

If the H1+H4 logic applies, she should be given a H4 status only for a year.
If not then she will potentially end up having the H visa status for 5+6=11 years.

Still Confused...
 
Even though I am not a lawyer, I am not sure about that, but I have searched on the murthy website. Yates' memo is avaliable on http://www.murthy.com/news/UDh121st.html or see below (I copied and pasted):

------------------------------------------
Family Members Eligible for H-4 Extensions beyond Six Years

The Yates Memo further asserts that derivative family members are eligible for H-4 status for the same period of authorized stay granted to the H1B status holder. In a particularly favorable interpretation that is in keeping with the BCIS' goal of maintaining family unity, Mr. Yates goes on to explain that a person who has held H1B status for a full six years, but has a spouse who is also in H1B status and eligible for one-year incremental extensions, may change his/her status to H-4 status under his/her spouse's H1B and be eligible for the one-year incremental extensions of H-4 status. While the H-4 extension is available, the H1B extension for that person would not be available unless s/he had his/her own, independent qualification for one-year incremental extensions.

---------------------------------------------

It looks like: if she is on her H4 and her husband applies for 7th year extension of her husband's H1, then she will eligible for extension of one year of her H4. But I am not sure because I haven't seen any case like this.

Hope this helps.

USGC485
 
Not really similar to my case but somewhat. I don't if this can help, though.

I came in as H1 10/2001 & my wife followed 2 months later on H4. July 2003 she got her own H1. When I filed my H1 extension Jan 2004, I asked my sponsoring company if my wife needs H4 extension. They say since she already has her own H1, she is independent on her own and doesn't need H4 extension.

Currently, she is now looking to transfer to another company through H1 transfer. Meaning, she's been in her own independent case.

Our 485 has been filed March 2004 concurrently with 140. Got my 140 approval August 2004.

==JLCF==
 
One cannot get 7th year H1 based on spouse's pending LC. So they have to wait till LC cleareance and file for concurrent I-140/I-485 to get EAD.
 
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