H1B maxing out and PERM still pending approval

[Dhaval M.]

Hi ,

 

My 6 year max of H1B is running out in Nov, 2023. My employer has filed for my greencard, however it’s pending PERM approval. PERM was filed in Dec, 2022 hence I am not eligible for 1 year extension based on pending PERM approval from more than 1 year. To file for my H1B extension, I need PERM & I-140 approved. Due to current DOL processing times, it is possible that I might not receive I-140 approval before my H1B max out date of Nov, 2023. In order to stay in USA and avoid going back to India, my employer’s immigration team suggested that I consider filing change of status to H4 or B2 to bridge the gap of 20 days. Once we cross 1 year of PERM filing,  my employer is planning to file for my H1B extension on grounds of 1 year PERM/I-140 pending and I can start working on H1B as soon as I receive H1B approval receipt.

 

My question is:

-        If I file for change of status to H4 or B2 to extend my period of authorized stay till Dec 2023, do I need approval for H4 or B2 first before they approve   my H1B ?

-        Once my employer files for H1B extension in Dec 2023, can I withdraw my H4 or B2 change of status application since I need H1B extension petition to override H4 or B2 ?

Any advice is greatly appreciated. 

 

Thanks. 

 

Edited October 6, 2023 by Dhaval M.

[Attorney_20]

You don't need to wait for the H4/B2 to be approved to file the change of status back to H1B but you cannot resume work until the H4/B2 is approved, so you should not withdraw it.