H1B expiring on Oct 20th - extension not yet filed


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My H1B is expiring on 10/20/2011. My H1B extension could not be filed earlier because I was waiting for my PERM labor approval and I-140 approval. My PERM got approved on Sep 14th and I-140 got approved on Oct 6th. However, now my employer has not yet filed my H1B extension because they could not find a full time project yet. My resource managers are on the serious lookout for a full time project for me and I currently have two projects in hand (both being full time only about two months beyond my current visa expiration date). But employer is still not convinced with these two projects as they want to file an extension petition only when the projects are atleast 6 months beyond my visa expiration date. Now, I had planned for a vacation to India from Oct 23rd – Nov 14th. Since my H1B is expiring on 10/20 and I am leaving to India on 10/23, I will be out of status from 10/21 – 10/23. I want to apply for a change of status to H4 on 10/20 and then leave US for India on 10/23. Now, my question is do I still have to file change of status to H4, if I am leaving US on 10/20 itself instead of 10/23?

Please suggest.

Thank you,


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You are correct that unless a valid petition is timely filed on your behalf prior to the expiration of your H1B status, you will be out of status beginning the day after your status expires until you leave the U.S. If a valid change of status petition is timely filed on your behalf prior to your current H1B expiration you will be in a period of authorized stay. However, you should be aware that when you leave the U.S. your pending change of status petition will be considered abandoned by USCIS. If you have additional questions, please contact a qualified U.S. immigration attorney directly.

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