J1-H1B application and legal status

[visausagreen]

Hello, I'm looking for urgent advice- I have been working since Feb 06 on my J1 and my employer wishes to sponsor me for an H1B. What would happen if we sent in an application this month even though the cap has been reach - is there a chance it would be approved as I am already working for that employer? if not, would they just send the whole application back advising to resent in April? With my J1 expiring in March 07 I am not sure why my employer should have to recruit someone else to do my job (I am the only employee) from March 07 until Oct 07 would be a serious problem for my employer.

If not accepted for this year and with my J1 expiting March 07 , can I apply for adjustment of status - extension of my I94 for the period March 07 until April 07. Can I apply for EAD during the period March 07 (after J1 expiry) until October 1st when H1 would start?


My wife is working on her J2 with EAD - when she changes to H4 can she apply to extend her existing EAD? She is also being sponsored to PR through here employer but only H3 so with a long wait for a visa number could she extend her EAD if and when I140 approved?

Sorry about all the questions, I wish there was a numebr you could call to get answers !

 

[GotPR?]

What would happen if we sent in an application this month even though the cap has been reach - is there a chance it would be approved as I am already working for that employer?

They accept H1 petition 6 months prior to start date. The start date must be Oct 1 2007 at the earliest, therefore they won't accept H1 petition til April 1 2007.

if not, would they just send the whole application back advising to resent in April?

which is most likely to happen. Or they just trash it. In either way, they won't accept the petition.

With my J1 expiring in March 07 I am not sure why my employer should have to recruit someone else to do my job (I am the only employee) from March 07 until Oct 07 would be a serious problem for my employer.

if you were the only employee, they are categorized H1 dependent employer, and need to follow some rule. One of the rule is they have to run recruitment before they file H1 petition for you, unless your salary is higher then certain level.
Search H1 dependent employer on google and you'll find what is obligation they must follow.

If not accepted for this year and with my J1 expiting March 07 , can I apply for adjustment of status - extension of my I94 for the period March 07 until April 07. Can I apply for EAD during the period March 07 (after J1 expiry) until October 1st when H1 would start?

I assume adjustment of status you referred is extension of non-immigrant status. Based on what I know, max stay w/ J1 is 18 months, so you may be able to extend.
EAD won't be issued unless you were dependent of L1, J1, or E, or you have applied for I485.

My wife is working on her J2 with EAD - when she changes to H4 can she apply to extend her existing EAD?

No, H4 is not allowed to work, so that EAD can not be extended.

She is also being sponsored to PR through here employer but only H3 so with a long wait for a visa number could she extend her EAD if and when I140 approved?

No, she can apply for EAD only when she filed I485 under this circumstance.

 

[visausagreen]

To GotPR

1) Thanks, I was just wondering if they would be offering any gap cap relief for J1 - as long as they would return the check and thought it might be worth a try.

2) Thanks but I am confused - I have just had a look at the I129 instruction and it says that a H1B dependent employer: "Has 25 or fewer full time employees who are employed in the US AND employes more than seven H1B nonimmigrants" - I am one of two employees and my employer does not employ any other H1B's, surely then my employer is not H1B dependent???

3) I have a two year J1, expires 7th Feb 07 with a 30 days grace making that 7th March 07. I would like to apply to "extend my non-immigrant status" as per USCIS leaflet # M-579, I went to the USCIS offices in Boston and although they were not very clear that's what they told me to do! I am worried about the time between by J1 expiring (March 07) and 1st April for being in status due to H1B application pending. Just three weeks but I don't want to be illegal even for one day as my wife has an application for PR pending!


3). No my wife is my J1 dependant on the current EAD. She will not be able to apply for EAD yet - it is an EB3 (we are British) so we have several years to wait for I485 to be filed??!!

By the way I am really grateful for your reply and I noticed you reply a lot to other peoples posts. It is hard to get the information required from an official source (and I think it should be easier!)

 

[GotPR?]

1) Thanks, I was just wondering if they would be offering any gap cap relief for J1 - as long as they would return the check and thought it might be worth a try.

There is no cap gap relief this year. They did it 2 years ago, but not last year and this year either.
As for filing H1 now, I'm pretty sure they won't accept it. You can try. CIS won't cash check, however, you probably lose money you paid to lawyer(they probably won't give it back to you).

2) Thanks but I am confused - I have just had a look at the I129 instruction and it says that a H1B dependent employer: "Has 25 or fewer full time employees who are employed in the US AND employes more than seven H1B nonimmigrants" - I am one of two employees and my employer does not employ any other H1B's, surely then my employer is not H1B dependent???

May not be considered H1 dependent employer then. Not 100% sure, though.

3) I am worried about the time between by J1 expiring (March 07) and 1st April for being in status due to H1B application pending. Just three weeks but I don't want to be illegal even for one day as my wife has an application for PR pending!

you must have some status on April 1. Unfortunately, grace period is not considered status and change of status or extension of stay filed filed during that period is not accepted.
But if you do not mind to get H1 stamp before starting to work, you can probably file H1 petition w/o change of status.. You may need to stay away from the US for a while though.

3). No my wife is my J1 dependant on the current EAD. She will not be able to apply for EAD yet - it is an EB3 (we are British) so we have several years to wait for I485 to be filed??!!

At the current processing speed, you may need to wait for 2,3 years at least, unless any new law passes.

 

[visausagreen]

To GotPR

1) "You must have some status on April 1. Unfortunately, grace period is not considered status and change of status or extension of stay filed filed during that period is not accepted. But if you do not mind to get H1 stamp before starting to work, you can probably file H1 petition w/o change of status.. You may need to stay away from the US for a while though"

If I apply for extension of stay while my J1 is still current as per the M579 form, would that not be acceptable? It is so hard to understand as the form I picked up at the USCIS office makes out that they will consider any plausable reason for extending your stay (I94)?. How can I apply for H1 petition without change of status - I will be out of status on March 7th 2007 if I am not granted an extension of stay??

 

[GotPR?]

If I apply for extension of stay while my J1 is still current as per the M579 form, would that not be acceptable? It is so hard to understand as the form I picked up at the USCIS office makes out that they will consider any plausable reason for extending your stay (I94)?. How can I apply for H1 petition without change of status - I will be out of status on March 7th 2007 if I am not granted an extension of stay??

YOu must apply for change of status or extension of stay before grace period starts. Unless your extension of stay is granted, you can not change your status in the US. You still can apply for H1, but you need to get H1 stamp before you start working on Oct 1.(And you need to stay away from the US for a few months).

 

[visausagreen]

To Got PR

Thank you so much for clarifying that I can at least apply for an extension of my stay and therefore a chance to stay between my J1 expiry and my H1B application.!