F1 Stem Opt to H1/ H4 EAD help needed

[iniasruak]

I am currently on STEM OPT with no F1 stamping, I came to US on H4 visa and converted to F1 after I got admission in PhD and haven’t travel to India in last 6 years. I want to travel sometime soon may be by the end of this year. A little about my background, I am PhD in engineering from a very reputed school and just joined as an assistant professor again in a good school.
My employer initially (before joining i.e. at the time of offering job) told me that they will do my H1 B (academic) as soon as I join but now my manager says he wants to see my performance for next year before filing my H1 B. I am stuck now as I really want to go to India to see my family they can’t come here due to health issues. I want to ask what are my options.
My questions are
1) Can the employer do that, first agrees that they will do the H1 and then later refused to do it?
2) I am eligible for H4 EAD? If I apply for F1 to H4 COS and EAD concurrent application, how long does it take usually ?Already read about the court case on revoking H4 EAD rule, does that applies to pending application?
3) In the best- case scenario if I manager agrees to file my H1 and given that premium processing for academic H1 is still open how long does the whole process takes including prevailing wages, DOL filing and H1 filing.
4) In the worst-case scenario if I must visit India on OPT for see a sick family member and If I have some other job offer will the new employer be able to file H1 for me while I am in India.
5) If I quit this job how long I can stay unemployed on STEM OPT
I would really appreciate any reply or suggestion on my case. I am living under a very stressful environment. I feel I worked so hard to get my PhD and to get this job but this whole H1 b process and the travel restriction is killing me. Thanks for time, patience and consideration.

[iniasruak]

Can someone please help me by replying?

[scientist2016]

I am currently on STEM OPT with no F1 stamping, I came to US on H4 visa and converted to F1 after I got admission in PhD and haven’t travel to India in last 6 years. I want to travel sometime soon may be by the end of this year. A little about my background, I am PhD in engineering from a very reputed school and just joined as an assistant professor again in a good school.
My employer initially (before joining i.e. at the time of offering job) told me that they will do my H1 B (academic) as soon as I join but now my manager says he wants to see my performance for next year before filing my H1 B. I am stuck now as I really want to go to India to see my family they can’t come here due to health issues. I want to ask what are my options.
My questions are
1) Can the employer do that, first agrees that they will do the H1 and then later refused to do it?
2) I am eligible for H4 EAD? If I apply for F1 to H4 COS and EAD concurrent application, how long does it take usually ?Already read about the court case on revoking H4 EAD rule, does that applies to pending application?
3) In the best- case scenario if I manager agrees to file my H1 and given that premium processing for academic H1 is still open how long does the whole process takes including prevailing wages, DOL filing and H1 filing.
4) In the worst-case scenario if I must visit India on OPT for see a sick family member and If I have some other job offer will the new employer be able to file H1 for me while I am in India.
5) If I quit this job how long I can stay unemployed on STEM OPT
I would really appreciate any reply or suggestion on my case. I am living under a very stressful environment. I feel I worked so hard to get my PhD and to get this job but this whole H1 b process and the travel restriction is killing me. Thanks for time, patience and consideration.

(1) USCIS or the law has no say in this. Any agreement you have/had with your employer is between the two of you. If you had it written into the employment offer, you could consider suing, but immigration law has nothing to do with it.
(2) Your eligibility for H4 EAD depends on your spouse's H1 and I140 status. Nobody can predict the future of H4 EAD.
(3) You mentioned your employer was a "good" school, so they probably have a HR department which is well versed with H1 filings. In such a case it will take may be a couple of months at most.
(4) Your presence within the US is not required for your H1 filing. But the biggest concern is will the new employer qualify for a cap exempt H1. If not, you will have to wait until the next cycle (April 2018) to file, and if accepted, you can start working only from Oct 2018.
(5) Typically 90 days.

[iniasruak]

(1) USCIS or the law has no say in this. Any agreement you have/had with your employer is between the two of you. If you had it written into the employment offer, you could consider suing, but immigration law has nothing to do with it.
(2) Your eligibility for H4 EAD depends on your spouse's H1 and I140 status. Nobody can predict the future of H4 EAD.
(3) You mentioned your employer was a "good" school, so they probably have a HR department which is well versed with H1 filings. In such a case it will take may be a couple of months at most.
(4) Your presence within the US is not required for your H1 filing. But the biggest concern is will the new employer qualify for a cap exempt H1. If not, you will have to wait until the next cycle (April 2018) to file, and if accepted, you can start working only from Oct 2018.
(5) Typically 90 days.

Thanks a lot for your guidance and replying to my query. According to my ISO it is possible to the file prevailing wage and LCA now without filing the H1 petition? I think the manager may agree as they don’t have to pay any fee for that. And if I must go to India for some emergency then the employer can file H1(out of country). Is it advisable to do that? How long is LCA and prevailing wages approval valid?
I would really appreciate your reply. I am in very stressed situation these days, I worked so hard to earn PhD and this job and don't want to loose this but on the other want to see sick family member too.