H4 - F1 - H1B for spouse

[deepboy]

Hi

I am on my 6th year of H1B with I-140 approved and current extension till May 2012 (6th year of H1 expires Oct 2011). My wife came to the US in early 2008 and was on H4 untill Dec 2010. She started her masters on H4 but later changed her status to F1 and currently maining F1 status only. Here are my questions:

1. Is it possible for an employer to file her H1 this year or may be next year? (since my 6 year H1B expires this year and I have read somewhere that under AC21 it will not be possible for the spouse of an H1B holder to maintain H1 status beyond 6 years of the primary H1B holder H1 period)

2. If AC21 issue mentioned in my previous question is not a hindrance,is it a better option to apply H1 from her current F1 status or should she change back to H4 and then apply for H1?

Any response is highly appreciated.

[pontevecchio]

Periods in H4 status are delinked from the 6 years of H1 status . Your spouse can have a sponsor apply for her H1 this year or next.

[Attorney_20]

Generally, a U.S. employer can file an H1B petition for a foreign national in F-1 status if the job is in a specialty occupation. The F-1 student could also possibly work for a U.S. employer pursuant to Optional Practical Training (OPT) upon completion of her studies, depending on the type of job. Depending on her field of study, OPT could give 12 to 29 months of work authorization. Curricular Practical Training (CPT) is another type of work authorization for F-1 students that are still in school.

AC21 law permits a beneficiary of an approved I-140 petition with a non-current priority date to extend H1B status beyond the 6 year limit in 3 year increments. Based on your description, if your priority date is still not current (and the I-140 is still approved) when your current H1B status expires in October 2011, your employer can request another 3 years of H1B status.

If your spouse switches to H1B status, she will be eligible for up to 6 years of H1B status regardless of your H1B status. If she had an employer start a green card case, she may also be eligible to extend beyond the 6 year limit under AC21 law. This is because her status as an H1B holder is not a dependent status (like H-4 or F-2). If your spouse wants to work for an employer in H1B status, then the company would need to file an H1B petition requesting Change of Status from F-1 to H1B.

You and your spouse should discuss your plans with an experienced immigration attorney to make sure your nonimmigrant status is preserved while your green card case is in process.