H1 & EAD question

L

lsamp

Registered Users (C)
Guys and gals,

My first H1 expired sep 2001 (valid for 2years and 5 months) Then applied for H1 extension. Never heard back from INS. Filled form I-9 with same employer for EAD in April 2002.

If something bad happens to my 485 and I have to switch back to H1, will I get back full 6 years without leaving the country for a year as I have been working on EAD for more than a year now?

The law says you cannot stay for more than 6 years on H1/H4 combined (we are not considering 7th year extensions).

I have used AC21 and changed employers and planning to change again.
 
Adjustee status probably will not count towards H-1B 6-year limit, although I am not entirely sure about that. BUT there is a limit on the duration of the H-1B visa and its extensions, e.g. they will not extend the visa beyond the total of 6 years (unless I-140 is pending for more than 635 days, of course). The status, however, applies to an entirely new H-1B visa should you prefer to get one of those. You will be able to stay in H-1B status on the new visa for the remainder of time left from the 6-year limit on the original H-1B visa (including any extensions, if any).

If you choose to switch from H-1B to H-4, the time you have spent on H-1B will count towards 6-year limit of H-4. While switching from H-4 to H-1B, the time spent on H-4 will not count towards H-1B 6-year limit.

To reactivate the 6-year H-1B limit you will have to depart the country and remain abroad for 1 year (this must be documented somehow, by the way, to serve as evidence). The time you have spent within the States in any status (including illegal) will not count.
 
I think BM your combined stay on H1 or H4 or H1+H4 or H4+H1 cannot be more than six yrs if no GC process is involved and if GC is involved than in that case extension is possible if your 140 is pending for more than 365 days.

Correct me if I am wrong.

Consider
Hubby Wife
H1 H4 For first six yrs
H4 H1 Can have another six yrs to stay.
 
According to my information, switching from H-1B to H-4 still counts towards the 6-year limit of H-4. Meanwhile, switching from H-4 to H-1B does not count towards the H-1B limit. This is true, assuming that before H-4 you weren't in H-1B status or have reinitiated the 6-year period by leaving the States for 1 year.

So, in fact, this creates a problem with the scenario you have mentioned. Say, a husband with H-1B got laid off, but his wife managed to get a job in H-1B at the time. So, the husband obtains H-4 status, but the time remaining in H-4 is 6 years minus whatever he has already spent in H-1B. For the wife, her H-1B has just started the 6-year countdown. This is a major problem for the husband if he is nearing the 6-year limit, because H-4 7th year extension can be filed only with H-1B 7th year extension and the wife's H-1B is nowhere near the 6th year. Generally speaking, the husband is screwed.

That's the way it is. Don't ask me why.
 
BM,

I take your words and don't think I don't trust you. But still I would like to ask is it your understanding or you have some reliable source from where I can read this information just sake of my knowledge.
 
Vipsha,

Tell you what. This is my humble opinion and readers have to decide for themselves if they tend to believe it or not. I am not a lawyer and do not want to become one. Therefore, not withstanding lack of procedural knowledge, I am most certainly not aware of many clauses of the law and regulations surrounding them. I do devote some of my time to study relevant articles (including but not limited to INA, INS regulations and attorney's interpretations), but it is absolutely inadequate to furnish a completely correct advice should a need arise.

As for the subject of our conversation, namely time limits on H status, I have a distinct impression that initial H4 status does not count towards H-1B status time limit. However I spent some time in attempt to find a reference proving my point, I could not find it. Even worse than that, I found a reference dated in early 2000, which states otherwise. Certainly, something could have changed since then, but not very likely.

So... I admit that my former statement can be wrong, although I still have an impression that the initial H-4 status does not count towards later H-1B status :)
 
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