H1B expiring soon, PERM pending while wife pregnant! - lots of doubts...

[yats]

Applied PERM in the 6th year of H1B (< 365 days).
Priority Date: Jan 17 2012
Visa expiry date: July 10 2012 (after recapture)...
Status of PERM is still pending. Did not receive any audit so far...
Wife in H4, 33 weeks pregnant and not in a position to travel back to India.

Noticed that I-129 petition for recapture had wrong VISA expiry date -- can anything be done about it? Eligible for 10 extra days. How can this be filed?

Is it possible to get extension of stay ( for pregnant women) -- on medical grounds / compassionate reasons?

Is it possible to get a Change of Status to B2? -- we only have abt 20 days left before expiry... Can a COS be applied at this stage?

Is it better to apply for Change of status or continue with expired H1B visa to avoid the risk of COS being rejected and removal process initiated?

Can overstay of less than 180 days be considered for 3 year ban?

Will overstay affect future entry into US again?

Can we send a mail to USCIS or use infopass -- to enquire whether there is any other option to resolve current situation?

Need urgent advice...

[shervin143]

Noticed that I-129 petition for recapture had wrong VISA expiry date -- can anything be done about it? Eligible for 10 extra days. How can this be filed?
>>> If you have enough documents to prove that you can still recapture 10 more days, the employer can file an extension to recapture those 10 days.

Is it possible to get extension of stay ( for pregnant women) -- on medical grounds / compassionate reasons?
>>> No.

Is it possible to get a Change of Status to B2? -- we only have abt 20 days left before expiry... Can a COS be applied at this stage?
>>> well, you can certainly try. It is an option if you act fast.

Is it better to apply for Change of status or continue with expired H1B visa to avoid the risk of COS being rejected and removal process initiated?
>>> Staying illegally after the I-94 expiry date is a very bad idea.

Can overstay of less than 180 days be considered for 3 year ban?
>>> It can, depending on the VO or the officer you meet at the POE.

Will overstay affect future entry into US again?
>>> It certainly can. You will need to answer "YES" to the question "Have you ever violated your immigration status" whenever you fill any kind of U.S visa, petition or immigration petitions.

Can we send a mail to USCIS or use infopass -- to enquire whether there is any other option to resolve current situation?
>>> It will be of no help. Do consult a good immigration attorney.

[yats]

Thanks for the prompt response. Hoping the attorney will come up with a workable solution....

[yats]

Another Question...

Received Audit last week... Finally some response.

Attorney is OK with COS to B2 status and has asked to avoid 'out of status' as much as possible.

Please let me know, if COS to B2 affect the PERM audit process? So far we've been worrying only about maintaining legal status post H1B expiry... but just now read in a forum that PERM process can also be saved. Missed asking this query to attorney...

Hence, if anyone knows, please answer...

[shervin143]

COS to B2 will not have any impact on the pending PERM.

Received Audit last week... Finally some response.

Attorney is OK with COS to B2 status and has asked to avoid 'out of status' as much as possible.

Please let me know, if COS to B2 affect the PERM audit process? So far we've been worrying only about maintaining legal status post H1B expiry... but just now read in a forum that PERM process can also be saved. Missed asking this query to attorney...

Hence, if anyone knows, please answer...

[yats]

But how?

If I use, the 6 years of H1B completely before the COS to B2 gets approved, how will I be eligible for H1B extension via a pending PERM process?

Kind of confusing...

[shervin143]

The best option would be to leave at least 2 months in your H1B and go for a different status or leave the country. When the PERM completes 365 days, file a H1B petition to recapture the 2 months. If it is a COS (if you are in U.S), you will be able to work when the COS gets approved. If you are outside U.S, enter on a valid H1B visa. Then you can file the 7th year extension based on the pending PERM.

If I use, the 6 years of H1B completely before the COS to B2 gets approved, how will I be eligible for H1B extension via a pending PERM process?

Kind of confusing...

[yats]

Oh!

That clarifies a lot...

Wrt my case, I don't have 2 months time ... just abt 20 days left to file COS application. Read somewhere COS when approved, will happen from receipt date (or date application is received) ...

Does that mean I have not used the H1B status from receipt date to expiry date, though I would have stayed in US when COS application is under progress?

[shervin143]

By the time you apply the COS and receive the receipt notice another 10-15 days will be over. There is no point in trying to recapture anything in your case as there is not enough time left to recapture. Complete the 6 years, wait for the PERM to mature (365 days) and then try to file the H1B extension based on the pending/approved PERM.

That clarifies a lot...

Wrt my case, I don't have 2 months time ... just abt 20 days left to file COS application. Read somewhere COS when approved, will happen from receipt date (or date application is received) ...

Does that mean I have not used the H1B status from receipt date to expiry date, though I would have stayed in US when COS application is under progress?

[yats]

Thanks a ton...

Thanks for patiently explaining. Its all clear now.

[yats]

Advice needed!

Thanks for patiently explaining. Its all clear now.

Update on this case:

Applied for COS to B2 before H1B expiry. Wife delivered healthy baby. Travel documents of baby are all ready.
At this stage, PERM got approved.

What is the best way to proceed....

1. Apply for I-140 from US. In this case, the following are the queries...
a. Can H1B extension be applied while B2 application is pending?
b. Will H1B Extension application get RFE due to interim B2 status?
c. Is COS from B2 to H1B required? Is it risky?

2. Cancel B2 application, go to India and then apply for I-140 and thereby H1B extension. To avoid any record of B2 stay in US.
a. Will the period of stay post H1B expiry be considered illegal, will it have any bearing on H1B extension application?

Advice needed!

[willithappen]

Update on this case:

Applied for COS to B2 before H1B expiry. Wife delivered healthy baby. Travel documents of baby are all ready.
At this stage, PERM got approved.

What is the best way to proceed....

1. Apply for I-140 from US. In this case, the following are the queries...
a. Can H1B extension be applied while B2 application is pending?
b. Will H1B Extension application get RFE due to interim B2 status?
c. Is COS from B2 to H1B required? Is it risky?

2. Cancel B2 application, go to India and then apply for I-140 and thereby H1B extension. To avoid any record of B2 stay in US.
a. Will the period of stay post H1B expiry be considered illegal, will it have any bearing on H1B extension application?

Advice needed!

Hello Yats,

For my benefit, what did you eventually decide to do?

Thanks!