H1 Max out with Perm pending and 2 months gap to fulfill 365 day rule

[Lifelong]

Hello,

My H1B max out date is at the end of Aug 2020 including recapture. My employer filed my Perm application on 23rd Oct 2019. My wife is on H4 and my kids are USC. There is no update on my Perm as of yet and premium processing is suspended.  Even if my perm is approved this month and employer files I-140, it will not be approved within time. (if my perm is audited, it is a whole different story) I will qualify for H1B extension filing after 23rd Oct 2020 so there is a gap of 2 months from Aug 2020 till Oct 2020 where I will be out of status. My employer's lawyer has advised me to go back to India and wait for H1 approval on Loss of pay. This waiting may take up to a year if Premium processing is not resumed. He has suggested no other options to maintain my legal status here itself.

Another complication is One of my kids is having a health situation and is on the waiting list for an appointment at Children's hospital in my city. If I leave in Aug, my kid may lose his appointment slot which we have been waiting for a few months. His treatment will also get disturbed for the time I will be out of the US.  I would prefer to avoid this. So I have the following questions:

1. Can I file for a request for COS to B2 before my H1 expiry? Is this legal? What issues could I face in this request? How long it takes for the COS request to get approved?

My employer's attorney was not very clear about this. I will be on the loss of pay during this time and will not work obviously. This way, my kids can continue their school and treatment without any interruptions even if I am not working.

2. If the above is legal and has no gray areas,  I plan to request COS to B2 till Nov end and stay in the US on LOP.  

Can my employer file my H1B extension after 23rd Oct 2020 even if my COS to B2 is pending?  What if my H1 extension is approved before my COS request? Can I start working once H1 is approved or do I have to wait till COS to B2 is approved?

Once COS to B2 is approved, does my employer need to file COS from B2 to H1 or filing H1 extension request is sufficient?

What if my COS to B2 is denied and the H1 extension is approved? I plan to leave for India in December 2020 to get my stamping done and come back provided my H1 extension is approved by then. In that case, if my COS to B2 is pending, will it get abandoned? Would I be out of status for the period between 'Sep 2020 to Nov 2020'? 

3. Instead, if I choose to leave the end of Aug 2020, I will need to sell all my belongings as I won't be able to enter back into the US until my H1 is approved and stamped. Without premium processing, this may take up to a year. Selling everything would be a challenge due to the COVID situation and stay at home orders. My only other hope is if premium processing resumes but it seems difficult as of now.

Sorry for too many questions but I would appreciate it if someone could clear my confusion. This would help me make my decision. 

Thanks very much!

 

 

 

[User099]

Its better to talk to an attorney and take some legal advice in such situations. 

[swaroopa123]

Hi we are also on the same boat .our perm has been applied on october 24, 2019 and we got audit on jun6 2020.Our H1B max out is on Aug 02.We are also afraid to travel now with small kids.We are also looking out for the option of converting to B2 visa and then after we reach 365 days of perm pending process , applying for 1 year H1B visa extn.In this process we will be in loss of pay for 3 months, but then too we are fine if this option is possible.please let me know what process you are following