H1 6 years expired - next steps - please advice

[bumpyroad]

Hi,

I have just completed 6 years on my H1 and my employer did not file perm on time. I am currently on a valid H4 status.

I wanted to know what are best options to be back in work status ASAP and I have the following questions:

1. I understand from multiple consults that if my current employer or any other employer files perm and i140 now, I can return back to H1 status after i140 is approved. I think it is true but can anyone please help me verify this properly. If yes, are there any pre-conditions to it. I want to try this route since going out for 1 year is tough in my situation.

2. If I leave the country now to come on a fresh H1, can I apply a fresh H1 in Apr 2013 or do I have to wait for 365 days even to apply. Considering that one can come on a fresh H1 only on or after Oct 1, it would automatically take care of 365 days if I leave the country now. Do I still need to wait 1 year for filing the application?

3. Even if I go to academics and get and OPT on completion, can I change my status to H1 from OPT without leaving the country?

I am not sure whether I should leave the country or stick around. I have to be back asap as my spouse will continue to stay here and H4 is not a long term option for me.

Please advice.

[JoeF]

2. If I leave the country now to come on a fresh H1, can I apply a fresh H1 in Apr 2013 or do I have to wait for 365 days even to apply. Considering that one can come on a fresh H1 only on or after Oct 1, it would automatically take care of 365 days if I leave the country now. Do I still need to wait 1 year for filing the application?

An employer can only apply for a new H1 when you have been out of the country for a year.

3. Even if I go to academics and get and OPT on completion, can I change my status to H1 from OPT without leaving the country?

No. You would still have to be out of the country for a year before a new H1 application can be filed.

[Attorney_10]

Generally, AC21 portability law permits individuals who have exhausted his/her 6 years of H1B time to apply for H1B extensions in 1 or 3 year increments based on a PERM application that was filed at least one year prior or an approved I-140 petition. Generally, if an individual elects to depart the U.S. for one full year in order to be counted against the numerical H1B limitation again, the individual must demonstrate fulfillment of the one year requirement by the requested start date. Please schedule a consultation with a qualified immigration attorney to discuss the specific issues relating to your case and the different options that may be available to you.

[bumpyroad]

Thanks.

On the response ===

Generally, AC21 portability law permits individuals who have exhausted his/her 6 years of H1B time to apply for H1B extensions in 1 or 3 year increments based on a PERM application that was filed at least one year prior or an approved I-140 petition

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Does it means that even if my i140 is approved in the next 6 months (perm being applied after H1 expired), I still need to be out of the country for 365 days?

Basic question - what is the fastest way to get back to H1 status once I have an approved i140, if the perm was applied after 6 years of H1 have been exhausted?