Labor rejected - H1B expiring

[anumurali]

I need advice on my husband's position. He is on H1B now and its expiring in Nov 2010. He had applied for labor a year ago and just now got to know that it got rejected. I have the following questions:

1. I believe he can capture the days he was outside US to extend his H1. When should he apply for this extention? Is it before 6 months of expiry? Or can he apply now?

2. If he captures the above mentioned holidays, his stay can be extended till May 2011. This being the case, can he go for another labor application, provided he has one more year left on his H1? If the H1 extention capturing the holidays can be applied only before 6 months of expiry, then he can apply for it only in May 2010 and hence another labor application gets tricky as his H1 extention would expire in May 2011. It will be a very tight squeeze. Is this even possible?

Pls advice as to what options he has left to remain in the US.

Thanks,
Anu

[txh1b]

1. 6 months prior to expiration

2. Labor can be applied now again. The 6 years of H1b extension with recapture plays a role when one is requesting an extension based on a pending labor but applying for labor is not dependent on that fact.

[anumurali]

Thank you txh1b.

If my husband applies for labor now, and if his H1 expires before he meets the 365 day limit for PERM pending, can he stay in US on H4 or should he leave the country and be abroad till he meets the 365 day point to apply for 7th year extention?

[txh1b]

You are not getting the point. If a labor is filed today and the H1b expires in Sept 2010, if the person has spent around 4 months outside the US, the period spent outside the US has to be recaptured first. This will put the H1b expiration around Feb 2011.

Once the labor ages out for 1 year, then the person can apply for extension beyond 6 years in Jan 2011.

https://www.immihelp.com/h1-visa-extension-beyond-6-years-in-usa/

As an alternative, USCIS has allowed people to recapture and extend H1b at the same time beyond the 6 years provided the labor has aged out. As yours does not, you would have to follow what was mentioned above.

[anumurali]

Thank you txh1b.

I have a completely different question now.

Suppose if a person doesnt have any days he spent abroad to capture and his H1 is expiring in November 2010. In this case, if he applies for labor now(Feb 2010), the labor will certainly not age out one year before his H1 expires. So after/before November 2010 (H1 expiry date), can he become a H4 and remain in the US till the labor ages out 1 year and then extend his H1?

If the above case is possible:
Is he required to have time on his H1 left before becoming a H4? If yes, whats the recommended time to be left in H1?

Pls advice.

[txh1b]

Did you get a chance to read the link? The last paragraph addresses the issue brought up. The person can switch to H4, let the labor age out. There is not guideline for H1b period left to recapture. The more, the better.