Need Help - H1b-221g waiting - Perm Pending - 6-Year limit completing

[H1b221gH4]

 Hello All,

Here is a brief description of my wife's case

Item	Date	Comments
Current H1b Expiration Date	9/30/2019	6 years will be over
1st time Perm Filed Date	11/1/2017
1st Perm Rejection Date	8/1/2018
2nd time Perm Filed Date	4/23/2019
2nd Perm Audit Received Date	8/14/2019
2nd Perm Audit Responded Date	8/27/2019
Time stayed outside of country	120 days appxly	4 months can be recaptured
H1b Visa Interview Date	7/3/2019	Received 221g and case is still pending
H4 Visa appointment Date	9/23/2019

Since she is working as a Contractor, her employer couldn't wait for her beyond two months and ended the contract in August, but the Client letter given prior to her India visit has the tentative end date mentioned as December, 2020 and the same letter has been submitted to the Consulate. So, as per this letter, we ASSUME that she is still working from Consulate’s perspective and should not impact her 221g.

Assuming she won’t hear anything back from Consulate on her 221g till last week of September, we would like to weigh the following options. 

 

Option 1

1. Go for H4 stamping on 09/23

2. Come back to US and wait till Perm and I140 get approved.

3. Apply for H1b extension

Questions

• If her status changes to H4, will it have any impact on her ongoing PERM labor application which is still under Audit? 

• If her status changes to H4 and assuming there is no impact to the PERM application and is approved, can her employer still file I140 without having any recent Paychecks?

We ASSUME her status will not have any impact as PERM is something that addresses Prospective employment. Please confirm.

 

Option 2

1. Go for H4 stamping on 09/23

2. Come back to US and apply for H1b extension (To gain recapturing time of 4 months)

3. If PERM and I140 get approved within 4 months, apply for H1b extension

4. If PERM and I140 DO NOT get approved within 4 months, go out of the country and come back on H4 and (back to Option 1) 

 

Option 3

1. While in India, during the last week of September, have her employer filed for H1b extension based on recapture time of 4 months (assuming it is possible to do in Consular processing)

2. Go for H1b stamping again upon approval

This seems to be a very long shot for us as the chances of getting a 221g again are very high. 

 

Option 4

1. Go for H4 stamping

2. Come back to US and apply for H4 EAD

This is based on the assumption that her status change to H4 will impact both Perm and I140 approvals.

Let us know which option you guys would recommend. We are open to your suggestions.

Thank you all in advance. 

 

 

[JoeF]

On H1 she is never a contractor. Her employer may send her to a client site but that doesn't make her a contractor. She is an employee until her employer lays her off or she quits. Using outdated documents at the consulate is immigration fraud. Never even think about such stuff.

Edited September 12, 2019 by JoeF

[H1b221gH4]

JoeF,

Thanks for your reply. Her contract was ended very recently after we submitted the documents to Consulate and have been waiting since then. At this point, we have no way to contact the consulate but simply wait. There is not an iota of intention to fraud. And Yes, she is still an employee of her current employer. 

[shekar11#]

On 9/12/2019 at 12:35 AM, H1b221gH4 said:

 Hello All,

Here is a brief description of my wife's case

Item	Date	Comments
Current H1b Expiration Date	9/30/2019	6 years will be over
1st time Perm Filed Date	11/1/2017
1st Perm Rejection Date	8/1/2018
2nd time Perm Filed Date	4/23/2019
2nd Perm Audit Received Date	8/14/2019
2nd Perm Audit Responded Date	8/27/2019
Time stayed outside of country	120 days appxly	4 months can be recaptured
H1b Visa Interview Date	7/3/2019	Received 221g and case is still pending
H4 Visa appointment Date	9/23/2019

Since she is working as a Contractor, her employer couldn't wait for her beyond two months and ended the contract in August, but the Client letter given prior to her India visit has the tentative end date mentioned as December, 2020 and the same letter has been submitted to the Consulate. So, as per this letter, we ASSUME that she is still working from Consulate’s perspective and should not impact her 221g.

Assuming she won’t hear anything back from Consulate on her 221g till last week of September, we would like to weigh the following options. 

 

Option 1

1. Go for H4 stamping on 09/23

2. Come back to US and wait till Perm and I140 get approved.

3. Apply for H1b extension

Questions

• If her status changes to H4, will it have any impact on her ongoing PERM labor application which is still under Audit? 

• If her status changes to H4 and assuming there is no impact to the PERM application and is approved, can her employer still file I140 without having any recent Paychecks?

We ASSUME her status will not have any impact as PERM is something that addresses Prospective employment. Please confirm.

 

Option 2

1. Go for H4 stamping on 09/23

2. Come back to US and apply for H1b extension (To gain recapturing time of 4 months)

3. If PERM and I140 get approved within 4 months, apply for H1b extension

4. If PERM and I140 DO NOT get approved within 4 months, go out of the country and come back on H4 and (back to Option 1) 

 

Option 3

1. While in India, during the last week of September, have her employer filed for H1b extension based on recapture time of 4 months (assuming it is possible to do in Consular processing)

2. Go for H1b stamping again upon approval

This seems to be a very long shot for us as the chances of getting a 221g again are very high. 

 

Option 4

1. Go for H4 stamping

2. Come back to US and apply for H4 EAD

This is based on the assumption that her status change to H4 will impact both Perm and I140 approvals.

Let us know which option you guys would recommend. We are open to your suggestions.

Thank you all in advance. 

 

 

Option 2 is better. But you need to find out from attorney regarding PERM impact when status is changed to H-4.