H4 to H1 after 7 years

D

desitodesi

Registered Users (C)
Hello,

My spouse is on H4 visa since last 7 + years. Is it possible to change status from H4 to H1 based on a job offer. I'm on H1 and my LC, I-140 approved (PD 01/2002). I'm waiting on I-485 to file due to retro.

Regards,
D2D
 
desi,
The answer is no. She cannot get an h1 after six years of either h1 or h4 or a combination there of. The only way to get a h1 after 6 years is if her LC was applied and it is more than 365 days (or the 140 rule for her). Since she was on H4, she cannot fulfill any of the two condition and hence cannot get a h1 after 6 years of H visa (does not matter what kind). Hope this helps. I know, the answer is not what you would like to hear, but sadly that is the truth.
rgds,
 
Thanks Akela,

It means still a long long wait unless the law makers allow I_485
to file even if the priority date is not current. It doesn't cost anything to them to just allow I-485 to file. So many spouses of H1 holders won't have to wait unnecessarily to do a job and pursue their career if they want to.

But who cares ? They neither have vision nor time even to understand our problems. The single change "ability to file I-485" can bring relief to vast number of legal immigrants in one or the other way. I wish IV has this item on the top of its agenda.

Regards,
 
desitodesi said:
Thanks Akela,

It means still a long long wait unless the law makers allow I_485
to file even if the priority date is not current. It doesn't cost anything to them to just allow I-485 to file. So many spouses of H1 holders won't have to wait unnecessarily to do a job and pursue their career if they want to.

But who cares ? They neither have vision nor time even to understand our problems. The single change "ability to file I-485" can bring relief to vast number of legal immigrants in one or the other way. I wish IV has this item on the top of its agenda.

Regards,
Click to expand...

There was a memo that was to be introduced regarding this. I am not sure if that was introduced or not.
The memo would have allowed the h4 years not counted towards H1b years.. check with UnitedNations or Sara..


----------------Here is what is said at Muthy.com ---------------
Decoupling H1B and H-4 Time

As regular MurthyDotCom and MurthyBulletin readers know, the time spent in H-4 status is counted against the permitted time in H1B status, and visa versa. This interpretation arises from a more restrictive terminology in the immigration regulations, when compared to the statute itself called the Immigration and Nationality Act. This has long created problems in many situations, particularly those involving minor children or spouses. The USCIS indicated that, if released, this memo would "decouple" the counting of time for H1Bs and H-4s, and permit each status for the maximum six year period. It was not clear if this would address L-1 and L-2 time as well.
 
Last edited by a moderator:
The simple answer is no, she can't.
At this point her best chance is that you can file for her EAD as and when your date becomes current.
 
Unless the memo is approved .. to decouple h4 time from H1 .... EAD is only hope.
1 year out of US will also enable your spouse to get H1b.
 
Related questions...

If my wife has used X years on her H4, for how long she can get H1 for ? Is it 6-X years ? Is there a minimum limit on time period for applying H1 ?

Thanks for your response.
 
atyagi73 said:
If my wife has used X years on her H4, for how long she can get H1 for ? Is it 6-X years ?
Yes.
Is there a minimum limit on time period for applying H1 ?
Not that I know of but if she has 3 months left on her H4, say, then there is little chance of getting it done. If she has at least a year then it might be a good idea. A "reasonable" amount of time is good.

Thanks for your response.
Click to expand...
 
Also remeber that fy2007 h1 visas are all gone, so you could not possibly change her visa before oct 08 and for her to make it meaningful, she should be able to apply for LC at least a year before het h1+ h4 reaches 6 years. Just went through this stupid calculation so putting it out.

rgds,
 
Also, any time outside US during the H4 period can be captured for H1. For example, if she has on H4 for 5 years and 3 months and has spent 4 months of time outside US then H1 can be requested for 9+4 = 1 year and 1 month.
And further H1 extension is possible if LC/I-140 is pending for > 365 days or I-140 is approved.

Disclaimer: I'm not a lawyer, and this ain't legal advice, its just my opinion.
-----------------------------------------
PD: Jan 2000
LC: Mar 2000
I-140 EB3: Jun 2000
I-140 EB2: Oct 2000
I-485: Jul 2000
I-485 AD: May 2002
 
Now with premium I140 and Perm LC you could get her 140 approved in 4 months and that way extend her LC (in case 1 year is not left out since oct, 0x)
 
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