7th year on H4, Can I switch to H1 based on spouse's approved I-140?

[2005user]

Hello!!

I am on H4 for 6years, just going to enter 7th year.

My spouse is in 7th year of H1. His I-140 is approved ( I-485 is not filed due to retrogression). I understand that based on his approved I-140, he will be eligible for 3year H1 extenstions and I will be eligible for 3 year H4 extentions.

Can I file for H1 based on my approved 3 year H4 extention?
or
Since I already spent 6 years on H4, do I have to be out of US for 365 days, to be eligible for filing my H1 application?

Thank you very much for your answers.


Regards.

 

[GotPR?]

You are not beneficiary of approved I140 and you can not use it for 3 years extension for H1. You are eligible for 3 years H4, though.

 

[2005user]

Thank you for your reply.

So in order to get a H1B, I need to be out of US for at least 365 days.
If that is the case, Can I come back on H4, file and switch to H1B and get visa from Mexico/Canada or I have to go to India for H1B visa?

Regards.

 

[GotPR?]

Thank you for your reply.

So in order to get a H1B, I need to be out of US for at least 365 days.
If that is the case, Can I come back on H4, file and switch to H1B and get visa from Mexico/Canada or I have to go to India for H1B visa?

Regards.

as long as you stay out of the us more than a year, you can do that in Mexico/Canada/India/... etc. If you were in the US and filed I539 with H1 petition, you may not need H1 stamp to start working, though.

If you are sure your PD does NOT become current in a year, that is fine. If your PD becomes current within a year, you need to choose to come to the US for I485 filing or you stay out of the US and do CP.