Urgent (time sensitive) H1 Recapture vs Extension beyond 6th year

[pridee]

Hi,

 

We are faced with a very confusing situation. My husband's H1 expires on Oct 11,2013 and GC process is in progress for EB2 - currently in the 60 day waiting period by employer and labor to be applied in Aug,2013. He is planning to travelling to India in Aug 11,2013. We were under the assumption that he would get a 1 year/3 year extension after his H1 expires, whenever his Labor/I140 gets approved - lets say this is Nov,2013.

 

We plan to use my country of charge ability(UAE) for my husband's GC(I485 stage)- assuming this stage would be mostly in Jan,2014 or Mar,2014). We recently came to understand that since EB2 for UAE has a current priority date, my husband won't be eligible for H1 extensions after Labor/I140 approval.

 

In that case,

 

1. Can he use his H1 recapture time of 2 months (since he is travelling to India 2 months before H1 expires) to return to US after I140 approval - assuming his I140 is approved after his current H1 expires, that is after Oct 11,2013? If yes, is 2 months sufficient for recapture?

2. If the answer to #1 is no, how can he travel back to US for I485 application?

 

Please help, so that we can plan to travel earlier than Aug,2013 to get more recapture time.

 

Thanks,

pridee