H1B 6th year options

[toughnut7]

Hi Immihelp,

I am in my 6th year of H1B which is set to expire May 2015. With a recapture of about 2+ Months. Im looking at about end of July 2015. My wife is also on an H1B with about 4 more years to go. She has her current validity until 2016. Neither of us have applied for our GC yet. I have gone for stamping multiple times. Never had a problem. I work with a big 5 IT services company.

- I will be visiting India on personal travel around December 2014...would this pose an issue when Im coming back?

- If I have my GC filed through a consultant now. Would it help. I can convert to an H4 when my H1 expires. Intent here is to stay back another 1-2 years max.

-Would I be eligible to file in the next years quota if the above is not possible and return after December 2015? Assuming I leave the US this December 2014.

- I have a Masters degree from a US university. WIll I be exempt from the H1 quota/lottery next year or the year after?

Please help.
Thanks in anticipation

[toughnut7]

any help would be appreciated

[raghvi]

What is your current H1 employer/legal team planning for you? Are they not interested in applying for your GC ? Many MNCs, even if large, have this undocumented internal policy, and many of their faithful employees wake up to this unwritten truth pretty late.

Nonetheless, for you to stay beyond July 2015 (considering you do get to re capture), you need to have filed GC at least by July 2014, or have the I140 approved by July 2015. Now it does not seem either would be possible with only 8-10 Months to go. So, yes, you would eventually have to move to H4 visa for some time being.

- Your trip to India should not have any issue, as long as you have a valid passport, visa and petition at the time of re entry.
- If you want to work after July 2015, without the need to stay out of US for an entire year , yes, suggested to get GC applied immediately. Be careful of **** consultants though.
- Next Years H1 petition acceptance would start from April 2015, and work on it can start in Oct 2015. By that time you would have already completed 6 Years stay in H1 status, hence don't see a point in applying. Even if you leave in Dec 2014, you would get only 6-8 Months of H1. the law says one should apply for fresh petition after staying out of US for an entire year, as your petition will be filed in April 2015, before completion of one year outside stay, your clock would not reset.
- Having a Master's degree does not exempt you from H1 quota/lottery. Yes you do have a better chance as Master's there is an additional 20,000 visas available. But make sure the Master is earned from a US institution as defined in 20 USC 1001(a).

Option 1, File GC, stay in US, move to H4 move back to H1 after necessary period. If you plan and execute carefully I dont think you need to stay out of US for an entire year. Suggested that you get your GC applied immediately so as to start the 365 days period ASAP. Lets assume you do find a genuine employer who files for your PERM say by 01-Dec-2014 (considering time for all the paperwork), at the same time, file for your re capture time too. Now around, May 2015, few weeks before your H1 expiry, apply for H1 to H4 COS and stop working. This way, by 01-Dec 2015, based on PERM pending for 365 days you should become eligible to apply for 1 Year H1 extension of your H1 and move back from H4 to H1 and continue working. The drawback I see here is you cannot work for few Months while on H4, but you can stay in US on H4.

Option 2: Get a new H1. I dont think you would want to go through this route as this will involve a long stay outside US. As explained earlier, in order for you to get a new Cap subject H1, you need to first stay out US for an entire year and then apply. Next year's H1 petition acceptance would only start from April 2015, now even if you leave now, by April 2015, you would not have completed one year outside stay.

Option 1 is tricky and requires careful planning and timely execution, so suggest that you take help from an attorney.

This is my opinion not legal advice.

[toughnut7]

Dear Raghvi: You are a lifesaver. Greatly appreciate your comments and time in this regard.

I feel that Option 1 seems to be the way to go. I do have a ex-colleague who owns a consultancy who might be willing to file for my GC.