H1B Expiring Oct 2012-PERM not filed yet- Expecting a baby in Sep2012.. Need Urgent help

[vaish123]

Here is my case –

• H1B 6 years completion - Oct 27-2012
  
• H1B 6 years completion including vacation days - Jan mid 2013
  
• Perm supposedly to be filed in – Sep 2012
  
• Expecting a baby – Sep end 2012
  
• My Spouse’s H1B 6 years completion – July 2013
  
• My Spouse’s H1B with same company as mine
  

Q1: Can I go on H4 in Sep/Oct for 2-3 months (instead of maternity leave) then re-capture these days to extend H1 till March 2013 so that it gives me time for I-140 approval. Will H-4 time accrue against H-1B time? basically, does the time spent on H4 count towards H1 (6yrs cap) or not? There is lot of confusion on this.

Q2: Can I go on H4 in Jan 2013 (which means my H1 has expired) and then suppose I get I-140 approval in Feb 2013, can I come back on H1 in Feb 2013 with 3 years approval based on I140 Approval?

Q2A: If YES, Who needs to file for COS to H4 – Company or myself? How many days/months before we should file for COS in case visa is expiring on Jan-15-2013? How long it takes to get COS? Will this require a fresh H1B or it can be based on I-140 approval?

Q2B: If NO, then do I need to file for a fresh H1B in 2013? will it in 2013 quota or 2014? or do I need to go out of USA for a year even after I140 Approval?

Q3: Any provision based on Medical grounds to stay after Jan 2013 as I would little baby to travel with? Can I switch to a B-1 visa and continue working?

Thanks!

[pontevecchio]

1. Yes. No confusion. H4 time s not counted for H1 time.

2. Yes provided you keep a few H1 days spare to avoid all troubles.

3. you

4. na

5. H4 allowed till your spouse is in H1 status.

Now PLEASE discuss your specifics with a Good Lawyer to make sure there is no problem. Best of luck with the baby.

[Belle]

You REALLY need a good lawyer. It might be possible to switch to H4 - you can do it on your own. I don't think you will need company's involvement to switch back on H1 (maybe, minimal), but you will have to wait for approval before you start. Another way to shave time off is to leave the country. Talk to an experienced attorney about the H1 days count. Also, both of the spouses need a PERM, since one cannot extend H1 based on spouse's immigration process.

[tusharvk]

Congrats with the baby.

in a hypothetical scenario, if the baby born in the US, the baby is entitled to stay in the US as a USC and hence the mother? is this correct.

[pontevecchio]

"in a hypothetical scenario, if the baby born in the US, the baby is entitled to stay in the US as a USC and hence the mother? is this correct"

This is incorrect.

[tusharvk]

can you please elucidate which part is incorrect?

The baby being entitled to stay in the US or the mother as the baby's caretaker.

[vaish123]

i assume baby can stay but not mother unless she has a valid status..

[vaish123]

for my question - Q2: Can I go on H4 in Jan 2013 (which means my H1 has expired) and then suppose I get I-140 approval in Feb 2013, can I come back on H1 in Feb 2013 with 3 years approval based on I140 Approval?

Answer was - 2. Yes provided you keep a few H1 days spare to avoid all troubles.

I have a another question -

1. so i should go on H4 leaving some days on H1. I have to apply Extension to recapture my vacation days outside USA, so should I go ahead with extension or just leave it?

2. What if i go on H4 and my PERM is not yet filed by company?

3. Can company file my PERM while I am on H4?

[pontevecchio]

The fact that the baby is born here gives the mother no specific rights. Once the child is an adult he may qualify to sponsor the parents. In the meantime they have to have a valid status here to stay irrespective of the baby being born here. The family gravy train, the beloved of the right has no basis in fact.

[pontevecchio]

1. Your Lawyer is the more appropriate person to give you a specific answer to this question though I would say, Yes.

2. It should have no connection.

3. Yes.