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!

[kalyan_ac]

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.

​Time on H4 is not counted against H1b time.

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?

Yes

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?

One can file for COS to H4 themselves. Check on the processing times at service center.

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?

If you want to apply based on I140, you do not come under quota. Also since you are not leaving US, you cannot apply in the new quota.

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?

You can continue to stay on H4.

Thanks!