J1 waiver and too little H1 time

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bcalmac

Registered Users (C)
My wife spent 3.5 years on H4, then did the residency on J1 and now she is trying to get a waiver. The problem that I see is that she has only 2.5 years left on H1 and the waiver requires a 3 year commitment.

On the other hand, H1 can be extended beyound the 6 year limit if you are in the greencard process (more precisely if you labor certificate is pending for more then a year)

So what do you think? Was any of you in a similar situation?

Thank you.
 
My wife was in the same situation. She was in H4 for 4 years and then started her residency on J-1. She continued and completed her fellowship last year. She started her waiver job last month and has her H-1 is for 3 years.
 
> So what do you think?

Have the waiver employer file a PERM labor cert, 6 months into her job. In a underserved location it shouldn't be too difficult to fulfill the advertisement requirements.
This should go through in a couple of months. 13 months before her H1 epires, she can file an I140 which would give her a case to get a 7th year extension.

Oh, did I mention that this will get her a GC ?

(some states have rules restricting the waiver employer from filing a labor cert for 2 years, that could cause a problem)
 
I don't understand how you have only 2.5 years on H1. After you complete your residency on J1, when you start your your waiver job on H1, your 6 year period on H1 starts. The earlier period on H4 before J1 does not count towards your new H1.
 
> The earlier period on H4 before J1 does not count towards your new H1.

Unless there is some special rule for waiver docs, I believe that this is incorrect.

The H clock (H1b, H4, L1) resets once you are outside of the country for 12 months. If you change to a different status (J,F), it just stops and doesn't reset. There are plenty of people who came on H4, switched to F1 for a graduate degree and then have to wrestle with the problem of insufficient H-time for their green-card processing.
 
Well my wife got her H1 and she had the stamping outside the country last month. It is for 3 years. She was on H4 already for 4 years and J1 for 4 years.
 
> Well my wife got her H1 and she had the stamping outside
> the country last month. It is for 3 years. She was on H4
> already for 4 years and J1 for 4 years.

Consider yourself lucky. Another example of the rampant 'left hand does not know what right hand does' syndrome in US goverment. (family member got an RFE on a I485 the other day. The same office that approved the I140 one week earlier now wants proof that the I140 was approved......)
 
H4 time counts towards total H time

hadron said:
> Well my wife got her H1 and she had the stamping outside
> the country last month. It is for 3 years. She was on H4
> already for 4 years and J1 for 4 years.

Consider yourself lucky. Another example of the rampant 'left hand does not know what right hand does' syndrome in US goverment. (family member got an RFE on a I485 the other day. The same office that approved the I140 one week earlier now wants proof that the I140 was approved......)
Click to expand...

CIS mader a mistake here. Only if you have been physically outside the US for 1 year, that the H time clock resets, otherwise it just stops (as Hadron said).
You are NOT supposed to take advantage of a mistake by CIS, if you want to stay out of trouble. You go by what will be the actual H1 time for her.
This will be: (H1 6 years - H4 time)
.
 
> You are NOT supposed to take advantage of a mistake by
> CIS, if you want to stay out of trouble. You go by what
> will be the actual H1 time for her.

Well, in this particular case you might be able to get away with the 'ignorant idiot' defense.

addendum:
I don't think you are an ignorant idiot. But if they approve something that is reasonable to the layperson not familiar with immigration law, they have a hard time nailing you for it. If on the other hand, you apply for an H2b agricultural worker visa and they send you a certificate of naturalization, you probably would have a harder time explaining yourself.
 
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That is correct if you go out for 12 months the clock is reset. They approved your application witout complete checks and you can be in trouble if they find out. Even if it is their fault they can cancell the approval and you will have to go court to get things sorted out. If I were you I would have an alternate plan ready. You guys have come so far that it would be a pity if you got screwed for no fault of yours. And believe me I have seen this happen many times.
 
Quick question. I'm looking at the same thing but my husband will have his green card by then (through his employer). so...

I'm going on J1 in a few days. I've been in H4 for 5.5 years. By the time I finish the J1 residency I will have 6 months left on H to use. BUT, my husband will have his Greencard (through his employer). Of course they cannot file a I-485 for me until I get the waiver but...

Questions:
1. Would I have any issues getting a waiver with 6 mo left on H1? (see next Q too)
2. Can I file 485/EAD/AP as "beneficiary" (of my husband) the second day I have the waiver and H1, and then in 2 months when EAD/AP is approved switch off H1?

Thanks a lot!
 
Tough one.

The problem is you have to spend the entire waiver time 'in H1b status'. So, the only way for you to stay in H1b status long enough is if you have an employer that files a labor cert 6 months before you join them. You could use that pending LC to get 7th and 8th and 9th year extensions.

You husbands GC won't help you too much. You won't be eligible to file a 'follow to join' case until your 3 years are up.
 
I am in a similar situation. My 6 yrs on H visa will expire 7 months after I start a waiver job. What is the best way for me to ensure extensions on my H1b visa while doing waiver job? At what time should the LC be filed? Will the fact that LC applications will no longer be pending for 1 year have any role?
I would appreciate any help!!
 
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