H1 expiring in one week. Pls advise.

[sarah1]

My husband's H1 will expire in 1 week from now (full 6 year, no recapture because he has been working and has not left the US for the past 6 years). His PERM application is pending (EB-2).

We were told that we would hear back in a couple of months and if approved, they would do a premium processing of the I-140 (with concurrent I-485, since his priority date would be current).

He wants to be here to help with the process or it will tend to delay without him pushing things along. He is therefore considering on doing a COS to F1. (He has received an I-20 for continued education from a good university).

Question:
1. Is it okay for him to do a COS to F1, hope it gets approved, and then get the I-140 filed?

2. After/if his I-140 comes approved, can he get a H1b extension for 1 (or 3 years)?
(Would this be affected since he might be in F1 then?)

3. Does it make sense for him leave the country NOW (to try and recapture the 1 week he has left on his H1 so that he can use it later)?
(We don't understand how that works).

Any quick thoughts on this? We are very worried.

Thanks,
Sarah

[raghvi]

My husband's H1 will expire in 1 week from now (full 6 year, no recapture because he has been working and has not left the US for the past 6 years). His PERM application is pending (EB-2).

We were told that we would hear back in a couple of months and if approved, they would do a premium processing of the I-140 (with concurrent I-485, since his priority date would be current).

He wants to be here to help with the process or it will tend to delay without him pushing things along. He is therefore considering on doing a COS to F1. (He has received an I-20 for continued education from a good university).

Question:
1. Is it okay for him to do a COS to F1, hope it gets approved, and then get the I-140 filed?

2. After/if his I-140 comes approved, can he get a H1b extension for 1 (or 3 years)?
(Would this be affected since he might be in F1 then?)

3. Does it make sense for him leave the country NOW (to try and recapture the 1 week he has left on his H1 so that he can use it later)?
(We don't understand how that works).

Any quick thoughts on this? We are very worried.

Thanks,
Sarah

When was PERM filed?

1. Yes some people do follow that route, but it depends if USCIS approves the F1 or not. As nature of F1 by default assumes no immigrant intent, and having already filed an immigrant petition(EB2) does not go positive for an F1. If they do deny his F1 then am afraid your spouse would have to leave US and await the PERM/I140 accordingly.
2. If I140 is approved one can request for 3 Years H1 extension.
3. I would say this is the safest bet. As this will allow some time remaining on the H1, which can be used to file a recapture + extension based on I140, if approved in future.

This is my opinion not legal advice.

[sarah1]

Hi raghvi,

Thanks so much for this. This is very helpful. I'm assuming that recapture is the better option because he will have at least a week left on his old H1.

1. I guess I should add that he works for a H1 cap exempt company.
If he did not leave and has no recapture available, would it be doable for him to request a 3 years H1 extension after his I140 comes approved?

2. I read somewhere here that USCIS might not be aware of the PERM filing when they review his F1. That they would only become aware if an I140 is filed. Is that maybe not the case?

Thanks,
Sarah