UN or others, pls! Question: AOS H4 to H1

C

cala

Registered Users (C)
I filed I-485 for myself and my wife. I still have valid H1 and wife is on valid H4. None of us used EAD. We don't want to use EADs just in case something bad happens on I-485. I have another labor certification pending since 2002. My questions are:
1. Is it possible for my wife applying for her own H1B if she find a job? I think she is on AOS status now.
2. My wife's H4 is on her 7th year extension with my H1B. It's already over 6-year limit. Does CIS issue H1B for her based on my pending Labor Certificate (over 365 days)? I heard from a lawyer saying that she could get a one-year H1B in this case.
2. Can I do H1B/H4 extensions beyond 6-year limit by myself or I have to find a lawyer to do it? I think by law, employee can not file H1B extension for himself.

Thanks for the comments.
 
cala said:
I filed I-485 for myself and my wife. I still have valid H1 and wife is on valid H4. None of us used EAD. We don't want to use EADs just in case something bad happens on I-485. I have another labor certification pending since 2002. My questions are:
1. Is it possible for my wife applying for her own H1B if she find a job? I think she is on AOS status now. YES

2. My wife's H4 is on her 7th year extension with my H1B. It's already over 6-year limit. Does CIS issue H1B for her based on my pending Labor Certificate (over 365 days)? I heard from a lawyer saying that she could get a one-year H1B in this case. NO way. She should have her own LC peding to get 7th year H1 extn. Not from form yours
2. Can I do H1B/H4 extensions beyond 6-year limit by myself or I have to find a lawyer to do it? I think by law, employee can not file H1B extension for himself. No such law. You can prepare all the papers get signature form employer and send it.Thanks for the comments.
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Thanks for the reply. I need more info on question 2, though.

I just called my lawyer and she said My wife can get 1-year H1B based on my pending LC, in case she used all 6-year limit on her H4. I'm not asking extension, I'm talking about applying new H1 in case running out of 6-year H limit.
 
cala said:
Thanks for the reply. I need more info on question 2, though.

I just called my lawyer and she said My wife can get 1-year H1B based on my pending LC,

Do not pay fees, ask him to get h1 frist and then pay fees. (If she exhausted 6 yrs with H1/h4 status, if she need 7th year new H1 or extn she need to have her own LC pending more than 365 days not from spouse LC) If he accept this condition go with him. Yates recent Memo clearly mentioning this clause. Whether he has not read it, or he want s easy money from you. If the H1 is not approved Is he is going to refund his fees?/ Check????in case she used all 6-year limit on her H4. I'm not asking extension, I'm talking about applying new H1 in case running out of 6-year H limit.
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I just read the memo and did not find such clause. Could you point out where it is. Thanks
 
cala said:
Thanks for the reply. I need more info on question 2, though.

I just called my lawyer and she said My wife can get 1-year H1B based on my pending LC,
------------ change your lawyer, she is giving WRONG info, your wife need to have LC filed for her by employer, she cant get H1 based on LC filed for YOU ,she can get H4 extension .

in case she used all 6-year limit on her H4. I'm not asking extension, I'm talking about applying new H1 in case running out of 6-year H limit.
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Please look at this from reputable lawyer:

b. Spouse's Ability to Extend H1B even if GC Started by Other Spouse

Question (b)
I am on H1B and my employer filed my Green Card about 2 years ago. My I-140 Petition has been approved but the priority date is not current. My spouse is on H1B with a different employer. His employer did not file his Green Card process since he expected to obtain the Green Card through me. I have only used about 3 years of my H1B but my spouse has used about 5 and half years of the H1B. Can my spouse enjoy the benefit of the one-time extension of the H1B status under ACTA until the priority date becomes current?

Answer (b)
Again, subject to the caveat below, one could argue that the spouse who has not started the green card process should be able to extend the H1B petition in this scenario. This is because the INS has previously interpreted that the H4 spouse is subject to the 6 year cap based on the H1B principal beneficiary being subject to the cap when there was no 6 year limitation on H4s under the statute. So if the principal beneficiary of the green card application would have been able to extend the H1B status in the U.S. under ACTA, the spouse should similarly be accorded the privilege of extending the H1B.


The only difference is new H1 and exisitng H1 extension for spouse. What do you think?
 
cala said:
Please look at this from reputable lawyer:

b. Spouse's Ability to Extend H1B even if GC Started by Other Spouse

Question (b)
I am on H1B and my employer filed my Green Card about 2 years ago. My I-140 Petition has been approved but the priority date is not current. My spouse is on H1B with a different employer. His employer did not file his Green Card process since he expected to obtain the Green Card through me. I have only used about 3 years of my H1B but my spouse has used about 5 and half years of the H1B. Can my spouse enjoy the benefit of the one-time extension of the H1B status under ACTA until the priority date becomes current?

Answer (b)
Again, subject to the caveat below, one could argue that the spouse who has not started the green card process should be able to extend the H1B petition in this scenario. This is because the INS has previously interpreted that the H4 spouse is subject to the 6 year cap based on the H1B principal beneficiary being subject to the cap when there was no 6 year limitation on H4s under the statute. So if the principal beneficiary of the green card application would have been able to extend the H1B status in the U.S. under ACTA, the spouse should similarly be accorded the privilege of extending the H1B.


The only difference is new H1 and exisitng H1 extension for spouse. What do you think?
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Excerpt from Yate Memo.

Yate Memo is availble Immigration .com site and www.ins.gov site too.

The memo contains some bad news for dependents of persons in H-1B status. Although they may obtain 7th year H-4s, they cannot obtain 7th year new/extensions as H-1Bs unless they "independently" qualify for such. (Editor's note: This is an unfortunate interpretation. If both spouses are in H-1B status, it is unnecessary for both of them to apply for labor certification and I-140s in order to achieve permanent residence since they may either "accompany" or "follow-to-join" the principal. This interpretation may result in the employers of both spouses submitting labor certifications and I-140s, and thus, unnecessarily clogging the Labor Department and/or the CIS with unnecessary applications and petitions.)
 
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