Does 6 year count both H4 and H1?

nogcnolife

Registered Users (C)
my wife came with me on H4 visa in December 1999. She got her own H1 visa last year (2004) through her employer. Is she able to extend her H1 visa beyond December 2005? Does the 6 year rule counts both H4 and H1, no matter the visa holder got H4 first or H1 first?

Please advise
 
Yes for the 6 year rule BUT
The law provides that a person can file for an H1B extension beyond the six-year limit if s/he has either had a labor certification or an I-140 immigrant petition pending for 365 days or longer.

If you don't have this the six-year clock on H1B is not reset unless you leave the country for at least one year.
 
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grunggy said:
Yes for the 6 year rule BUT
The law provides that a person can file for an H1B extension beyond the six-year limit if s/he has either had a labor certification or an I-140 immigrant petition pending for 365 days or longer.

If you don't have this the six-year clock on H1B is not reset unless you leave the country for at least one year.

Hi grunggy, thanks for your reply.

Her H1 expiry date is Dec 4th, 2005.
Do you think she still has time to apply for a LC?
Does she must go PERM for the LC?

Thanks
 
H1 time limit

I asked my lawyer and she said if you go on H4 - the time is not counted towards 6 years of H1. I am really confused now.
 
nogcnolife said:
my wife came with me on H4 visa in December 1999. She got her own H1 visa last year (2004) through her employer. Is she able to extend her H1 visa beyond December 2005? Does the 6 year rule counts both H4 and H1, no matter the visa holder got H4 first or H1 first?

Please advise

Dec 1999 - Dec 2004 H4 (5 yrs)

Dec 2004 - Dec 2005 h1 ( 1 yr)

She exhausted her H classification of total 6 yrs, (If your attorney, can do it , let me know his address ,I have punch of people ready to go to H1, provided no fees will be given to attorney until approval arrives from INS) unless her own LC is pending more than 365 Days. However she can change her h1 to H4 ( your h1 dependent) and continue to stay in US in status.
 
Hi,

I'm sorry I didn't understand this... So, even after exhausting 6 years of H (on either H1 or H4), is it legal to continue to stay on H4? Can they then stay legally for as long as the H1 holding spouse has a valid H1?

I am in the 6th year of my H1, and without the option of getting H-1 extensions based on pending GC application, can I continue to stay in US if I convert to H4?

Thanks.
 
NO. The six years is a combo of H-1 and H-4. DId 6 years on H-1B can't do H-4. You have to leave the country for a year to reset it.
 
saduja said:
Hi,

I'm sorry I didn't understand this... So, even after exhausting 6 years of H (on either H1 or H4), is it legal to continue to stay on H4? Can they then stay legally for as long as the H1 holding spouse has a valid H1?

I am in the 6th year of my H1, and without the option of getting H-1 extensions based on pending GC application, can I continue to stay in US if I convert to H4?


Yes , You can. because H4 dependent on H1, where the H1 is extendable to 7th year based on pending LC.


Thanks.
 
I am in the 6th year of my H1, and without the option of getting H-1 extensions based on pending GC application, can I continue to stay in US if I convert to H4?


Great Guru: Please read this again. He says he does NOT have the option of getting extensions based on GC pending. If he doesn't have a labor certification or I-140 pending for a year or more; he can't stay longer then the 6 year max. He has almost done the full 6 years on the H-1B. He can't just convert to H-4 now.

From Murthy.com
Duration of Stay in H1B Status

The maximum duration of stay in H status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of these statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.

The law provides for certain exceptions to the limit on stay. If the beneficiary's work in the U.S. is seasonal or intermittent, or s/he spends six months or less per year in the U.S., then the six year limit does not apply. The law also permits one to apply for one-year incremental extensions of H1B status if s/he has remained in status and has had a labor certification or I-140 pending for 365 days or more.
 
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grunggy said:
I am in the 6th year of my H1, and without the option of getting H-1 extensions based on pending GC application, can I continue to stay in US if I convert to H4?


Great Guru: Please read this again. He says he does NOT have the option of getting extensions based on GC pending. If he doesn't have a labor certification or I-140 pending for a year or more; he can't stay longer then the 6 year max. He has almost done the full 6 years on the H-1B. He can't just convert to H-4 now.

This is only applicable when you go from H4 (exhausted h1+h4=6yrs) to H1,when your spouse is here with legal status, you can go as dependent, INS will not deny. Here H1 to h4 is possible, only your spouse is legal here.
From Murthy.com
Duration of Stay in H1B Status

The maximum duration of stay in H status is six years. If a person has held more than one type of H status, or has held L status, then stays in all of these statuses are added together to determine how much time remains available. For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.

The law provides for certain exceptions to the limit on stay. If the beneficiary's work in the U.S. is seasonal or intermittent, or s/he spends six months or less per year in the U.S., then the six year limit does not apply. The law also permits one to apply for one-year incremental extensions of H1B status if s/he has remained in status and has had a labor certification or I-140 pending for 365 days or more.
 
From Above
For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.


What you are saying does not make sense. The 6 years applies to all H-4 or H-1B status. Sure your spouse can come with you under H-4, but there is still a 6 year limit no matter how you did your time. H-4 to H-1B. H-1B to H-4. Or changing to L1 later. It all adds up. Please show us where what you are saying is allowed under law.
 
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grunggy said:
From Above
For example, if a person came to the U.S. on an L1 visa, later changed to H1B, and then to H4, it is necessary to add up the period of time spent on all three of those categories towards the 6 year stay allowed.


What you are saying does not make sense. The 6 years applies to all H-4 or H-1B status. Sure your spouse can come with you under H-4, but there is still a 6 year limit no matter how you did your time. H-4 to H-1B. H-1B to H-4. Or changing to L1 later. It all adds up. Please show us where what you are saying is allowed under law.

What I am telling this thorugh my practical exp, through CSC it was done and the candidate 's h4 got approved , she is here last 8 yrs.

So many mis interpreted law from attorney's office, I dis proved, also one from Carl Shusterman.
 
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Are you saying that the spouse is the primary H-1B. The H-1B person can get 1 year extensions if LC is pending for a year or I-140 is approved and a year. Then so could the woman you are talking about.

In your 8 year case scenario the only way shes getting renewed is if her primary H-1B person can extend because of LC or I-140.

If the H-1B holder is doing this then fine. The dependant must also keep renewing their H-4. The only way the H-4 is getting a new I-94 when their time expires is to reapply. (Same for H-1B) The H-4 does not automatically get the H-4 unless its applied for and extended. Just because the H-1B has renewed IT DOES NOT automatically give the H-4 person a renewed I-94.
Too many people know this by finding out the hard way. The dependant thought the H-4 was renewed when the H-1B did theirs automatically. THAT IS NOT TRUE.

In the persons question above they are the primary H-1B . They can NOT get extension because they say the do not have LC or the I-140 (they say they have no GC processing). If they can't renew after the 6 years NEITHER can their H-4 dependant. They also can't just beomce an H-4. That won't help. The person will still be beyond the 6 year limit on these visas.
They would have to leave US to reset the 6 year clock.

AGAIN PLEASE SHOW US WHERE YOUR SCENARIO IS ALLOWED UNDER LAW.
IF IT HAPPENED IS WAS PURE FLUKE.
 
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grunggy said:
Are you saying that the spouse is the primary H-1B. The H-1B person can get 1 year extensions if LC is pending for a year or I-140 is approved and a year. Then so could the woman you are talking about.

In your 8 year case scenario the only way shes getting renewed is if her primary H-1B person can extend because of LC or I-140.

She joined with her spouse once she exhausted her 6 yrs H1 and no LC on her behalf.
If the H-1B holder is doing this then fine. The dependant must also keep renewing their H-4. The only way the H-4 is getting a new I-94 when their time expires is to reapply. (Same for H-1B) The H-4 does not automatically get the H-4 unless its applied for and extended. Just because the H-1B has renewed IT DOES NOT automatically give the H-4 person a renewed I-94.
Too many people know this by finding out the hard way. The dependant thought the H-4 was renewed when the H-1B did theirs automatically. THAT IS NOT TRUE.

In the persons question above they are the primary H-1B . They can NOT get extension because they say the do not have LC or the I-140 (they say they have no GC processing). If they can't renew after the 6 years NEITHER can their H-4 dependant.



They would have to leave US to reset the 6 year clock.
 
Aug 2005 Visa Bulletin

Aug 2005 Visa Bulletin is out today.
There is no retro for EB2.
Dates are Current for EB2
 
My 6 year H1B will be expiring next year. Will I be still able to apply as an dependant (h4)?
 
Copied following from Immigration.com FAQ. This seems to be contradictory to what great guru is saying. Any comments?

---------------
Q84 My husband is about to complete his 6 years of H1B status within next 6 months. I have applied for my H1B. My question is, in case if my husband's company is not going to extend his H1B can he stay over here as a dependent on my H1B. Will there be any further problems for processing my GC
A84 If you are not covered by the provisions in the new laws that permit extension of H-1 beyond 6 years, your choices are severely limited. Once your 6 years of H-1 expire, the only way to reset the clock is to leave the U.S. for one year. After one year, you will have another 6 years of H-1 available.
In the alternative, you can TRY changing to another status such as O-1 or F-1 (student) , if you wish to continue to live in the U.S. But that does NOT reset the H-1 clock. But once I-140 has been filed, USCIS is reluctant to grant F-1 status. Filing for and obtaining an "O" visa may be another option if you an exceptionally qualified individual. The advantage of an "O" visa is that it can be renewed year to year indefinitely.

If you have a green card application pending, that can continue even if you left the country or changed to another status, if the employer wishes to have it continue. Of course, pendency of a GC application is NOT a deterrent for a new H-1 to be issued after one year abroad.

You can also try filing for Canadian Permanent Residence.


(Posted on 09 February 2004)
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saduja said:
Copied following from Immigration.com FAQ. This seems to be contradictory to what great guru is saying. Any comments?

---------------
Q84 My husband is about to complete his 6 years of H1B status within next 6 months. I have applied for my H1B. My question is, in case if my husband's company is not going to extend his H1B can he stay over here as a dependent on my H1B. Will there be any further problems for processing my GC
A84 If you are not covered by the provisions in the new laws that permit extension of H-1 beyond 6 years, your choices are severely limited. Once your 6 years of H-1 expire, the only way to reset the clock is to leave the U.S. for one year. After one year, you will have another 6 years of H-1 available.
In the alternative, you can TRY changing to another status such as O-1 or F-1 (student) , if you wish to continue to live in the U.S. But that does NOT reset the H-1 clock. But once I-140 has been filed, USCIS is reluctant to grant F-1 status. Filing for and obtaining an "O" visa may be another option if you an exceptionally qualified individual. The advantage of an "O" visa is that it can be renewed year to year indefinitely.

If you have a green card application pending, that can continue even if you left the country or changed to another status, if the employer wishes to have it continue. Of course, pendency of a GC application is NOT a deterrent for a new H-1 to be issued after one year abroad.

You can also try filing for Canadian Permanent Residence.


(Posted on 09 February 2004)
---------------

I have seen the Q &A not only for this issue for different issue, from different site. I will give another classic example.
I have consulted Carl Shusterman after paying $350 per half hour.

Candidate was H4 and pending immigrant, I 130 was approved waiting for PD to be current to file i 485. Mean time candidate wanted to study in a school and got I 20, want to change F1.

Everybody knows pending immigrant can not get non-immigrant visa especially F1 visa, based on that (Go and check several sites Q&A), I thought of going to above mentioned attorney for consultation.

Consultation started, he was adament to see the candidate's passport first, after reluctant I showed to him.

Then I started to put the situation infront of him,

His answer was, it is impossible , I have worked more than 10 yrs with immigration dept itself.

If pending immigrant start applying for F1 , the candidate will be deported. This was his exact word.

This is not Q & A session, advise - face to face to with attorney.

Saduja, What will you do? Since attorney told that is the final.? (As per your posting)

I have done my own research, finally i convinced myself deportation never be done for this kind of situation, though attorney warned several times during the consultation.

I applied F1 (COS from H4 in the year 2001), yes I got big RFE, why you want to change to F1 ?dada dada dada etc.?


All the RFE's were answered, with sufficinet evidence document, and F1 was finally approved.\

based on this experience, in this same forum several people got benefitted and got their F1 approved. (With F1 they can go for 1 yr OPT otherwise no chance). Several people pUt Q&A and commneted Great guru posting is contrary to Q&A and all but still too many people benifitted from my experience.

Final Verdict>

See, read, consult, but do not follow blindly.
Do your own research, look for loop holes, get others "practical experience" and go ahead with resoving the issue.

Non immigration is the topic, very tough to understand, not every body issued visa, even though everybody equally qualified to get one. Any valid answers.


If any body's h4 is get rejected in this situation, tell me then I will accept your evidence. Untill then I have my own proof.
 
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