H1 B Extension: Looking for Guru.

[shustrik]

I am doing second year of medical residency on H1B visa. My 6 year period (4.5 years on H4 and 1.5 years on H1B) is going to end by the end of April 2006. I still need 1.5 years to finish my medical training. My husband?s LC stuck in Philadelphia Backlog with PD March 2003/RIR;EB3/, there is also retrogression April 2001. I would like to know what options do I have:
1. If I process a J-1 visa for 1.5 years, when I finish my residency I should do a J-1waiver. If at that time my husband will receive his I-140, will he be able to include me also in his case during waiver?
Can I waive on his I-485 instead of processing H-1B visa during waiver?
I already consumed my 6 years on H status, so as I understand I cannot waive on H1-B.
2. Second option: once my H1B visa will be expired I?ll interrupt my medical residency,go to my country for 1 year and then come back and continue my training on a new H-1B visa. And if by that time my husband will file I-485, can I file with him, or should I process separate H1B for internist position and start EB 2case.
a) In this case if during a 1 year stay in my country my husband?s LC will be approved and he file I-140 is it possible that the Embassy in my country deny my H1-B visa because my husband applied for immigration, i.e. filed I-140? (immigration intent)
b) And as I red, there is a project to process H1B visas for 2 years without possibility of an adjustment of status, is there a possibility that they are going to implement this law and stop to process current H1B visas next year?
Please advise what other options do I have?
Thanks in advance

 

[GotPR?]

1) I485 application says this as ineligibility.
"You are or were a J1 or J2 exchange visitor and are subject to 2 year HRR and you have not complied with or been granted a waiver of requirement".
So, go figure..
As for J to H, you are correct. you can not change to H1 in the US.
2) If you were in the US, you can file I485 as derivative of your husband.
(a) There is no question asking if your spouse is applying for GC in DS-156..Unless interviewer specifically ask, they may not come to know.
And most importantly, H1 is dual intent visa.. So , no problem.
(b) Please point us to the article.

 

[shustrik]

1) I485 application says this as ineligibility.
"You are or were a J1 or J2 exchange visitor and are subject to 2 year HRR and you have not complied with or been granted a waiver of requirement".
So, go figure..
As for J to H, you are correct. you can not change to H1 in the US.
2) If you were in the US, you can file I485 as derivative of your husband.
(a) There is no question asking if your spouse is applying for GC in DS-156..Unless interviewer specifically ask, they may not come to know.
And most importantly, H1 is dual intent visa.. So , no problem.
(b) Please point us to the article.

---
Thank you for your prompt reply.
1. As I understand for me there is no option to receive J1 waiver on H1B because my 6 years on H1-B are already consumed.
2. I don't understand can I waive on my husband's I-485, continuing working in underserved area for 3 years and receive GC with my family.
3. If I don't have options 1 and 2 I should go back for 1 year to my country to come back with new H1-B and continue my medical residency, in this case my husband is receiving 7th year extension as LC pending, should I process H4 and leave country for 1 year or I must leave without H4. I must break H status for 1 year. Am I breaking my 6year period of H-status if I am outside of the USA with H4 visa for 1 year?
What will happen if my husband fill I-140 after LC If I am ouside of the country without H4 visa? Can he include me in I-140?
--
Here is the link for the article about H visa ongoing changes.
http://www.shusterman.com/pdf/tancredo705.pdf.
Please comment on section 101H.
Thank you.

 

[GotPR?]

---
2. I don't understand can I waive on my husband's I-485, continuing working in underserved area for 3 years and receive GC with my family.

My understanding is if you got J1 waiver, you are eligible to I485 w/o staying out of the US for 2 years. That is what I485 form says.
I think you may get more useful answer if you post this in J visa section.

3. If I don't have options 1 and 2 I should go back for 1 year to my country to come back with new H1-B and continue my medical residency, in this case my husband is receiving 7th year extension as LC pending, should I process H4 and leave country for 1 year or I must leave without H4. I must break H status for 1 year. Am I breaking my 6year period of H-status if I am outside of the USA with H4 visa for 1 year?

You'd like to stay out of the US for a year to get new H1. Why do you want to process H4 ? I think it does not matter if your H4 is in process or not, because if you leave the US during your change of status(H1 -> H4) is pending, you are considered to abandon the petition. But if you stay out of the US more than a year, you should be able to get another brandnew H1, though.

I think you are confused with H4 status and H4 visa/approval.
There is nothing like "outside of the US with H4" kind of thing. H4 status is only within the US.. Having valid H4 visa or approval does not mean you are on H4 status especially if you are staying out side of the US. During your stay abroad is not counted in H1+H4 period no matter if you have valid visa in your passport or valid approval notice. Only H1+H4 "status" period IN THE US is counted in 6 years. In another word, if you stay abroad for a year even thouogh you have valid H4 visa in your passport or valid H4 approval, you are eligible to get new H1.

What will happen if my husband fill I-140 after LC If I am ouside of the country without H4 visa? Can he include me in I-140?

THere is no concept of derivative beneficiary in I140 stage. You need to wait for him to apply I485 and you are included as derivative beneficiary. But I485 is adjustment of status which means you change the status from non-immigrant to immigrant within the US.. So, you should be in the US for I485. If you are abroad, you can file consular processing.

Here is the link for the article about H visa ongoing changes.
http://www.shusterman.com/pdf/tancredo705.pdf.
Please comment on section 101H.
Thank you.

That's too radical. I do not think it will pass.

 

[shustrik]

My understanding is if you got J1 waiver, you are eligible to I485 w/o staying out of the US for 2 years. That is what I485 form says.
I think you may get more useful answer if you post this in J visa section.


You'd like to stay out of the US for a year to get new H1. Why do you want to process H4 ? I think it does not matter if your H4 is in process or not, because if you leave the US during your change of status(H1 -> H4) is pending, you are considered to abandon the petition. But if you stay out of the US more than a year, you should be able to get another brandnew H1, though.

I think you are confused with H4 status and H4 visa/approval.
There is nothing like "outside of the US with H4" kind of thing. H4 status is only within the US.. Having valid H4 visa or approval does not mean you are on H4 status especially if you are staying out side of the US. During your stay abroad is not counted in H1+H4 period no matter if you have valid visa in your passport or valid approval notice. Only H1+H4 "status" period IN THE US is counted in 6 years. In another word, if you stay abroad for a year even thouogh you have valid H4 visa in your passport or valid H4 approval, you are eligible to get new H1.



THere is no concept of derivative beneficiary in I140 stage. You need to wait for him to apply I485 and you are included as derivative beneficiary. But I485 is adjustment of status which means you change the status from non-immigrant to immigrant within the US.. So, you should be in the US for I485. If you are abroad, you can file consular processing.


That's too radical. I do not think it will pass.

Thank you for the detailed answer.