H4 + EAD to H1B question

abhic21

By abhic21,
in H1B : H-4 Issues

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abhic21 Newbie

abhic21

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Hello,

This is my first post so sorry if this is not the correct section of if I make any other mistakes. I will try to be as brief as possible.

My wife and I came to the US on an H1B Visa in 2011. Later due to some circumstances, she changed her status to H4 + EAD in 2016 and continued to work in the same location. Due to discussions around H4 + EAD she wants to move back to H1B and the company is working on the filing right now. The first question that I have is that will she be CAP exempt since she had H1B previously and it will be a COS application or will she have to go through the lottery. 
Dates:
H1B - 10/01/2011 ( Came to the US on 03/31/2012)
H1B Renewed - 09/30/2014
H4 + EAD - 06/27/2016 (Current)

As per my calculation, she has used 4yr 3months of H1B, so even if she gets the H1B, she will only have 1yr 9months left. My second question is that if it is enough time to be far enough in the PERM filing to get H1B renewal beyond 6 yrs limit. Would you rather wait for the EAD stuff to be announced?

Any help in this would be greatly appreciated. Let me know if there is more information is needed to make any suggestions. 

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shekar11# Advanced Member

shekar11#

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22 hours ago, abhic21 said:

Hello,

This is my first post so sorry if this is not the correct section of if I make any other mistakes. I will try to be as brief as possible.

My wife and I came to the US on an H1B Visa in 2011. Later due to some circumstances, she changed her status to H4 + EAD in 2016 and continued to work in the same location. Due to discussions around H4 + EAD she wants to move back to H1B and the company is working on the filing right now. The first question that I have is that will she be CAP exempt since she had H1B previously and it will be a COS application or will she have to go through the lottery. 
Dates:
H1B - 10/01/2011 ( Came to the US on 03/31/2012)
H1B Renewed - 09/30/2014
H4 + EAD - 06/27/2016 (Current)

As per my calculation, she has used 4yr 3months of H1B, so even if she gets the H1B, she will only have 1yr 9months left. My second question is that if it is enough time to be far enough in the PERM filing to get H1B renewal beyond 6 yrs limit. Would you rather wait for the EAD stuff to be announced?

Any help in this would be greatly appreciated. Let me know if there is more information is needed to make any suggestions. 

It will be just a COS. NO need of going through lottery.

My suggestion is wait till the new for H-4 EAD rule is announced. Why do you want to waste valuable H-1 remaining time when you still have valid working H-4 EAD. Also the removal of H-4 EAD will not be overnight. There will a process and that will give you ample time to move to a different status without any interruption for work.

There are many folks in the same boat and everyone is using their H-4 EAD time and saving their H-1 time. Don't be worried.

Ask her company to hold off on the COS.

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abhic21 Newbie

abhic21

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8 hours ago, shekar11# said:

It will be just a COS. NO need of going through lottery.

My suggestion is wait till the new for H-4 EAD rule is announced. Why do you want to waste valuable H-1 remaining time when you still have valid working H-4 EAD. Also the removal of H-4 EAD will not be overnight. There will a process and that will give you ample time to move to a different status without any interruption for work.

There are many folks in the same boat and everyone is using their H-4 EAD time and saving their H-1 time. Don't be worried.

Ask her company to hold off on the COS.

Thank you so much for responding. 

I discussed it with the person who’s handling her case and said that it will the lottery since it has been 6 years since approval of the first H1B petition. AFAIK the 6 year rule is for the status on H1B not the time since approval. Also that it doesn’t count the time that we were outside of the US. Is my understanding correct ?

Are there two different application processes for COS and fresh H1B? 

I am also trying to convince them to not file it at all but they are concerned about losing her if the EAD is canceled. I hope they listen and don’t file it all.

Execuse my ignorance, I’m not up to date with the rules in this matter.

thank you again!!

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