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cps060
07-18-2006, 04:11 PM
My husband is in his 6th year of H1-B. He has an approved PERM Labor
application ( pending I-140, EB-2, He has a Masters degree from the US in
computer engg). I am on a H1-b & have been on H status for little less than 4 years. I too have an approved PERM Labor application & an approved I-140, EB2, waiting to file for I485 due to retrogression. I had a couple of questions & would appreciate if you could
answer these for me :

1) Should he decide to quit his job & plan to study full time, would he have to
go on F-1 status or is he eligible to be on H-4 status based on my H1-B
status (even though he would have completed 6 years in H1B status by then & would be in 7th year of H-1B status based on extension received by virtue of approved PERM Labor/I-140, but I would still be in my 4th-5th year of H status with an approved PERM Labor/I-140, EB2) ?

2) In another scenario, assuming my husband gets a 3 year H1-B extension (beyond the sixth year, based on approved PERM Labor/I-140), would another employer be able to file for H1-B on his behalf if he finds a job with another employer & decide to quit his present job ? If so his Green Card Processing would need to be re-started & then would he be able to retain his Priority Date. Also if his current employer chooses not to give his Labor approval/I-140 approval documents, will he still be able to change jobs & get H1-B filed from another employer.

mchundi
07-18-2006, 04:50 PM
My husband is in his 6th year of H1-B. He has an approved PERM Labor
application ( pending I-140, EB-2, He has a Masters degree from the US in
computer engg). I am on a H1-b & have been on H status for little less than 4 years. I too have an approved PERM Labor application & an approved I-140, EB2, waiting to file for I485 due to retrogression. I had a couple of questions & would appreciate if you could
answer these for me :

1) Should he decide to quit his job & plan to study full time, would he have to
go on F-1 status or is he eligible to be on H-4 status based on my H1-B
status (even though he would have completed 6 years in H1B status by then & would be in 7th year of H-1B status based on extension received by virtue of approved PERM Labor/I-140, but I would still be in my 4th-5th year of H status with an approved PERM Labor/I-140, EB2) ?

1: He is not elgible for H4 status beyond 6 years based on ur H1, while u r under the 6 year limit.
U shud take a legal advice on the H1 to F1 part. I dont know how advisible (F1)this is. H is a dual intent VISA while F is not.

2) In another scenario, assuming my husband gets a 3 year H1-B extension (beyond the sixth year, based on approved PERM Labor/I-140), would another employer be able to file for H1-B on his behalf if he finds a job with another employer & decide to quit his present job ? If so his Green Card Processing would need to be re-started & then would he be able to retain his Priority Date. Also if his current employer chooses not to give his Labor approval/I-140 approval documents, will he still be able to change jobs & get H1-B filed from another employer.

2: He can get 3 year H1-B based on the approved labor and (after approval of I140) as long as PD is not current and his current G.C is in Process with the same or different employer.

--MC

cps060
07-18-2006, 06:21 PM
The question remains if his current employer does not give Labor/I-140 related docs. Can he still get 3 year H1B from another employer & file another GC/Labor thru new employer ? If so, will he retain his Priority Date ?

ghost
07-18-2006, 06:57 PM
1) Yes he can study fulltime/parttime being on H-4. If he is on F-1 then he HAS to be a fulltime student to maintain his status. On the positive side, he can atleast get a assistantship if he is on F-1. I don't think he will be eligible for assitantships on H-4. Try to find out if he will get a new H-1B 6-year period if he switches to F-1/H-4 and decides to come back to H-1 after completing his degree.

2) He can and should get a 3-year extension from his current employer before changing employers. This will atleast give him some buffer period for his next GC filing. Once he gets the 3-year extension, he can change his employer and the new employer can file for a H-1B transfer on his behalf.

Coming to the portability question, I'm not sure if he needs his previous Labor/140 documents to retain the PD. As long as his previous employer does not cancel his GC application, he can port his PD while applying for 140 with his new employer. Try searching for "Porting Priority Date" on the forums for more insight on this subject. A lot of discussion happened on this topic earlier.

Good Luck!


My husband is in his 6th year of H1-B. He has an approved PERM Labor
application ( pending I-140, EB-2, He has a Masters degree from the US in
computer engg). I am on a H1-b & have been on H status for little less than 4 years. I too have an approved PERM Labor application & an approved I-140, EB2, waiting to file for I485 due to retrogression. I had a couple of questions & would appreciate if you could
answer these for me :

1) Should he decide to quit his job & plan to study full time, would he have to
go on F-1 status or is he eligible to be on H-4 status based on my H1-B
status (even though he would have completed 6 years in H1B status by then & would be in 7th year of H-1B status based on extension received by virtue of approved PERM Labor/I-140, but I would still be in my 4th-5th year of H status with an approved PERM Labor/I-140, EB2) ?

2) In another scenario, assuming my husband gets a 3 year H1-B extension (beyond the sixth year, based on approved PERM Labor/I-140), would another employer be able to file for H1-B on his behalf if he finds a job with another employer & decide to quit his present job ? If so his Green Card Processing would need to be re-started & then would he be able to retain his Priority Date. Also if his current employer chooses not to give his Labor approval/I-140 approval documents, will he still be able to change jobs & get H1-B filed from another employer.

mchundi
07-18-2006, 07:56 PM
1) Yes he can study fulltime/parttime being on H-4. If he is on F-1 then he HAS to be a fulltime student to maintain his status. On the positive side, he can atleast get a assistantship if he is on F-1. I don't think he will be eligible for assitantships on H-4. Try to find out if he will get a new H-1B 6-year period if he switches to F-1/H-4 and decides to come back to H-1 after completing his degree.
He may not get a H4 on the basis of her H1.

2) He can and should get a 3-year extension from his current employer before changing employers. This will atleast give him some buffer period for his next GC filing. Once he gets the 3-year extension, he can change his employer and the new employer can file for a H-1B transfer on his behalf.

Coming to the portability question, I'm not sure if he needs his previous Labor/140 documents to retain the PD. As long as his previous employer does not cancel his GC application, he can port his PD while applying for 140 with his new employer. Try searching for "Porting Priority Date" on the forums for more insight on this subject. A lot of discussion happened on this topic earlier.

Without documents how do u justify ur old priority date? Just refer to some case number and WAC/LIN/--- number. I am not sure if that works.

Get an advice from a good lawyer.

Good Luck!
--MC

cps060
07-18-2006, 10:03 PM
But how about the rule that A person can only get H status for only 6 years. Since he would have completed his 6 years & would be in 7th year of H status by virtue of approved PERM Labor/I-140, if he changes to H-4 status his Permanent residency would not be continued & approved PERM Labor/ I-140 may not be used to justify 7th year H status. I sure have my PERM Labor / I-140 & my H1-B status & based on my status will he be able to get H status beyond 6 years.

cps060
07-19-2006, 03:09 PM
What about change of status to H4 after 6 years of his H1B based on my H1B & my approved PERM Labor/I-140 ?

cps060
07-31-2006, 04:28 PM
Does someone have an answer for this ? Can my husbands H status be changed from H1 to H4 betyond 6 years .... based on my H1 (still within 6 years) & I have my Labor approved & I-140 approved well before the 6 year time limit ?

Has anyone done that before ?

popoye
07-31-2006, 04:31 PM
a person can hold a H status only for six contigous years whether its h4 or h1. Thats the rule. Infact even L1 is counted as time towards this H clock.

The only to get back on H1 or h4 status is by going out of the country or continue to 7th year if the labor is pending.

mihird
07-31-2006, 05:07 PM
a person can hold a H status only for six contigous years whether its h4 or h1. Thats the rule. Infact even L1 is counted as time towards this H clock.

The only to get back on H1 or h4 status is by going out of the country or continue to 7th year if the labor is pending.

H4 can be attained beyond the 6-contigous years of H/L/O, as long as the primary H1 driving the H4 is within the 6-contigous year rule that you mentioned above..

H4 will continue to extend no matter what as long as the primary H1 keeps extending within the framework of laws...

In this case, her husband CAN get a H4, even after exhuasting his 6 contigous years of H/L/O (with/without having his own labor pending for more than 365 days)...only catch is that once he moves to H4 all his pending GC efforts are in vain...he will never be able to get back to H1 without moving out for 1 year, and then restarting the whole GC process all over again...

Madhuri
07-31-2006, 08:07 PM
If he gets H4, stays out of U.S. fro 1 year and again gets a fresh H1 with the same company he should be able to use his old GC efforts, isn't it?
H4 can be attained beyond the 6-contigous years of H/L/O, as long as the primary H1 driving the H4 is within the 6-contigous year rule that you mentioned above..

H4 will continue to extend no matter what as long as the primary H1 keeps extending within the framework of laws...

In this case, her husband CAN get a H4, even after exhuasting his 6 contigous years of H/L/O (with/without having his own labor pending for more than 365 days)...only catch is that once he moves to H4 all his pending GC efforts are in vain...he will never be able to get back to H1 without moving out for 1 year, and then restarting the whole GC process all over again...

knowDOL
08-01-2006, 05:03 PM
csc060,

Are you saying that he cannot continue working with his current employer till he gets his I140 approved? If yes, then he better finds a job and transfer H1B giving the approved LC and pending I140 details and get 7th year extension and start GC from the beginning. Meanwhile, if your turn comes first in I485 he can forget his GC and get his through you.

If No, and he can continue at current employer till he gets I140, it is good, no wrries, after I140 approval he can retain his PD and get 3 years extension with H1 transfer. I am not sure about he coming on H4 and then moving back to H-1B and how it is going to work. Read more and probably mail to mathew oh from immigration-law.com

cps060
08-01-2006, 05:29 PM
he can continue working for his employer.
my questions were to find out options if he chooses to take another job with another employer.
If he does change his job after his I-140 is approved, how can he file for GC again & keep his old PD ? Remember his current employer may not provide the current PERM Labor approval or I140 docs.

Also in another scenario, if he chooses to study, can he get a H4 status based of my H1/PERM-I140 approved status. Iam in my 4th year of H.

BumbleBee
08-02-2006, 03:56 PM
my questions were to find out options if he chooses to take another job with another employer.
If he does change his job after his I-140 is approved, how can he file for GC again & keep his old PD ? Remember his current employer may not provide the current PERM Labor approval or I140 docs.

To port priority date, one have to file a new labor and a new I-140, and at the time of I-140 filling need to request for porting priority date from an already approved I-140. As the basis for porting priority date is an approved I-140, you must have proof of approval. Not sure if online status of the approved I-140 is enough in this case. And if for whatever reason your old I-140 is denied or withdrawn, it can not be used for porting. It has to be in approved status throughout :cool:

Also in another scenario, if he chooses to study, can he get a H4 status based of my H1/PERM-I140 approved status. Iam in my 4th year of H
Yes, he can switch to H4 based on your H1, but he has to leave and come back on H4 ( I-94 must reflect your status in country ). and his GC process can continue (its for future job).

BumbleBee

cps060
08-24-2006, 05:21 PM
Why does he have to go out & come back .... I thought to change status one does not need to go out. Only when when goes out, one needs to get the correct visa stamp to get in.

MannyD
08-24-2006, 06:58 PM
Why does he have to go out & come back .... I thought to change status one does not need to go out. Only when when goes out, one needs to get the correct visa stamp to get in.

I agree with your above thought.

I understand your husband has not completed his 6 years. So he should be able to move to H4 and beyond that when his 6 years expires, take cover under your approved I140. Hopefully you had the foresight to add him as a dependant in your I140 application. If you didn't, I don't think this will be possible.