H-1B running out of time!

V

vee111

Registered Users (C)
My H-1 has about 8 months left on it. My RIR application of July 01 is sitting in NJ's DOL. Doesn't look like I will be able to get LC cleared before H-1 expires.

As far as I know, the options available to me are:
(a) Wait till H-1 expires, if LC is not cleared, then leave the country and wait. (Once it is cleared, can I come back in with an H-1 extension although the H-1 has expired?)
(b) Go on H-4 based on spouse's H-1. However, I heard that H-1 + H-4 time cannot exceed 6 years. In which case this option is out.
(c) Hang around inconspicuously as an illegal immigrant and ruin my life. Not preferable.

To those in the same state as me:
Are there other options that I do not know of? Are you giving any serious thought to what you will do if your time runs out? Can you just pack your bags and leave without a problem? Or are you just hoping that everything will work out?

Please respond with your ideas and opinions.
Thank you!
 
Vee111....

I think that 6 year limit is for H1, not on H4.

"But one cannot have H4 unless his/her spouse has H1" makes people think that H4 is also limited to 6 year's.

...Check with attorney (at least 3). I will also check this out on other sites/forum.....
 
Time in H-4 counts as time in H-1 for the puposes of the six year limit. Time in L status also counts but that was not the question. You need a pending I-140, can you qualify for an NIW or EB-1:
 
Thanks for your reply. I don't think I can qualify for NIW or EB-1.

"Time in H-4 counts as time in H-1 for the purposes of the six year limit."

What does this mean? If I have been on H-1 for six years, does that mean I cannot go on H-4?
 
vee111,

A foreign worker may only work six consecutive years in H-1B status. To become eligible for another six years, the foreign worker must leave the U.S. for one year. Periods spent in any H status, H-4 or H-1B, count towards that six year limit.

This means you cannot go on H-4.

In 8 months expect July 01 to be cleared(honestly if you have no other options.) - file 140 as soon as possible after that. Then you can get H1 Extension.

Hope now it is clear.

:o
 
Vee111
Go and check the
LC not cleared... consular processing after H1 6yrs expiry

I Posted some Info Which might help you.
 
Vee111 another option is to convert to F1

Your status on F1 does not count towards H1 6years. I am not sure if you can convert back to H1 after one year.
 
You are right Ladyluck about F1, but after that you cannot come back on H1 unless you go out of US for a year.

:o
 
Need advice from immigration Gurus

My current company filed for a H1-B EOS application in March 2002 CSC requesting H-1 visa till 2004. CSC issued a RFE letter indicating that my 6 year limit on my visa status is going to be reached soon, therefore on what basis should the visa be extended till 2004. However, the name of the beneficiary and the start dates for H-1 status were wrong i.e. though the case number mentioned in RFE letter matched with the receipt number, the letter have a different name and the start date.

In the last six years, I switched from a H-1 to a F-1 visa and then from a F-1 to a H-1. It took more than 15 months (yes no typo) to get my I-539 (change of status) application approved from CSC. During that time (15 months), I maintained full-time student status, did not work ( on campus nor off-campus), and took at least the minimum number of course required (9 units). Once the F-1 application was approved I did a CPT for a company B. Finally, company B filed for F-1 to H-1 transfer which itself took 4 months. Company B also filed a Labor Certification application.

Q1: Shouldn't the time I was working for company B while on F-1 (via CPT), not count towards 6-years H-1 limit.

Q2: What about the time I was waiting for approval on my F-1 application (15 months). Is that time needs to be counted as H-1 or a decision on F-1 application is retroactive and applies from the date of filing the application and not from the date or approval of the I-539 application. (recapturing 15 months would help me a lot)

Q3: It has been more than 365 days since company B filed a labor application. I have a very strong case for NIW, can I file for NIW and apply for 7th year extension, even though I am not working for company B any more.

Q4: I have more than 6 months of vacation time accumulated over last 6 years, including a block of 4 months of time between two jobs. I have heard recapturing vacation time is difficult but is the probability better if the vacation time is between jobs.

Thanks in advance for your help.
 
vxmehra98,

Let us start from easy ones.

4). It is next to impossible to recapture vacation time as you are still om H1B status and H1B is not cancelled.

3). If you have NIW case - why fall for LC? Go and file NIW. (You should have started with same I would say.) Best of luck for the same anyways.

2). I-539 is Application To Extend/Change Nonimmigrant Status - only when it was approved your status got changed. So INS is right about counting your stay on H1B on that account.

Also you need to work a stipulated number of days per year on H1, so you cannot show that you were on Leave Without Pay or you did not work on H1 B visa - that will put you in even worse situation.

1). You are right - time on CURRICULAR PRACTICAL TRAINING (CPT) is not counted for H1 status. You can claim for those days if you were one on F-1 lawfully enrolled on a full-time basis for at least nine consecutive months.


:o
 
Folks:

My H1B six year limit expires in January 2004. This is taking into account all the vacations I have taken till date.

The issue is, that I recently changed my company and filed for a new H1B and suprisingly the validity for the new H1B is till October 2004.

What is the impication of this condition? Can I still continue to stay and work here although my 6 year limit ends in January BUT since the validity on H1B reads October 2004?

Please advise.

Thanks
MG
 
Although it says October. Your 6-Years ends in January only. It says October because I think Your company applied for Fresh H-1 not the extension. Still Consult the lawyer. Good luck
 
Although it says October. Your 6-Years ends in January only. It says October because I think Your company applied for Fresh H-1 not the extension. Still Consult the lawyer. Good luck
 
vee111, ladyluck is right and jharkhandi is only repeating what most of us know.

This is what I got from my attorney...

There are a few ways to get around this. One of them is...

If your H1 is expiring, you can convert to F1 3 or 4 months before your H1 expires. You must have all documentation to prove that you have used up only 5 years and 8 or 9 months of your 6 H1 years. When you are on F1, when your labor gets cleared, you can switch back to H1 and apply for extention on a yearly basis after applying for I-140. Verify this with your attorney.

Sam
 
SamResh,

Repeat is better then misleading. What you are telling is what one should do and not what is to be done - I hope you understand the difference.

Read it again what vxmehra98 has written - he has already lost 15 months to get I-539 apporval.

Your attorney is right too - one should get F1 3-5 months before H1 expires - cause that is the time which is expected for I-539 to be over. But in vxmehra98's case it was too long for no reasons. I would ask you a question - what would you say was his status till he got I-539 cleared? Was he illegal/on H1/on F1? Unless you get I-539 done your status is not changed. Ask your attorney - if you still don't understand.

I guess you are the only one inthe sequence of events, who did not get the point.
 
Jharkhandi,

FYI, I wasn't following any sequence. And every case is different. I cannot answer your question because I'm not an attorney. My intention of logging on to this site is to share info that's valuable to me and others. My reply was to share with people a few options, that are available to us. Ofcourse everyone should check with the attorney if it can be applied to his case. What you said is right, repeat is better than misleading.

Now think about the difference between the following two statements...

1. you cannot come back on H1 unless you go out of US for a year

2. there is a possibility that you may not have to go out of US if you research a few options (like converting to F1 much ahead of time before your H1 6 years are over) and apply to your case after discussing with the people who know better than you.

Giving options is not misleading, repeating one side of the coin is.

Sam
 
SamResh,

First of all let me congratulate on your deeep insight. I like your stand on issue:

>>FYI, I wasn't following any sequence.

Now, Read vxmehra98's posting. First line states the context for sure:

>>My current company filed for a H1-B EOS application in March
>>2002 CSC requesting H-1 visa till 2004.

Also I have put vxmehra98's name as first word on my posting. So I hope I was replying to one particular situation as in your point number 2.

About H1 limit - please be sane - we have been clearly discussing H1 6 years limit till that point.

Read K_P_K's posting: where he talks of

>> consular processing after H1 6yrs expiry

If 6 year has expired on H1B, can you be back on H1B unless you go out of US for a year? That clears your point number 1. If it is otherwise - please share your info with me.

Everyone comes here with good intent of sharing information and ideas - be a little polite and I have no doubt you can be a contributor here. No one is enemy for sure but avoid putting senseless emotional blasts. Quoting people in wrong light is definitely immature.

:D

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Likho script apna apna.
 
Last edited by a moderator:
re SamResh comments: When you are on F1, when your labor gets cleared, you can switch back to H1 and apply for extention on a yearly basis after applying for I-140.

My Comments: This can create problem for sure. F-1 does not have a dual visa (immigration and non-immigration), so be careful..However there are other visas available (other than H-1) which might help in your case.

re Jharkhandi comment:

4). It is next to impossible to recapture vacation time as you are still on H1B status and H1B is not cancelled.

My Comments: Why should the H-1B status needs to be canceled to get a visa extension. Can you please point to the law which states this.

2). I-539 is Application To Extend/Change Nonimmigrant Status - only when it was approved your status got changed. So INS is right about counting your stay on H1B on that account.
Also you need to work a stipulated number of days per year on H1, so you cannot show that you were on Leave Without Pay or you did not work on H1 B visa - that will put you in even worse situation.

My Comments: Fortunately my lawyer does not agree with your interpretations. Once I-539 application is filed and the full-time student status is properly documented, as per law the status change is retroactive and applies from the date of filing the application. Thanks for your comments though, which forced me to seek legal advice.
 
vxmehra98,

Your question was:

Q4: I have more than 6 months of vacation time accumulated over last 6 years, including a block of 4 months of time between two jobs. I have heard recapturing vacation time is difficult but is the probability better if the vacation time is between jobs.

For this my reply was:

It is next to impossible to recapture vacation time as you are still on H1B status and H1B is not cancelled.

My understanding of recapture is getting back the time on H1B status.

You asked for the law. Please refer to:

Immigration and Nationality Act section 8 U.S.C. 1101(a)(15)(H)(i)(b).

My answer is imperative deduction of above section and assumption that you were on job with H1B, when you describe your state in question 4. However you maybe right! Is your lawyer of the opinion that this time can be reclaimed on H1B? i.e. even if you are not working or were on vacation on H1 can you still claim the time back? Please let me know how can this be done as one of my friend is badly in need of same. Certainly will be a great help!

As for I-539 - you are correct. If the application is approved, it will be retroactive to the date of the filing of the application. All the best. Thanks for sharing info.
 
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