I'm an engineer, currently on 6th year H-1B good through, June 30th, 09.PERM was filed on Sep 22, 08 [ during 6th year], now being audited.Now my current employer is restructuring the company and planning to termminate me.Affter June 30 -till Sep 22,09, if I want to stay in US, I have to have a status.My husband is currenlty on H4 and he is getting an I-20 soon.
1.Once he gets I 20, can we file COS [H1 to-F2 & H4 to F1] simultaneously?
2.While my COS H-1B to F2, is pending, I will get a new employer to sponsor me new H-1B from Sep 23rd, based on current employer sponsored PERM labor pending for > 365 days.
3.Other than keeping the PERM alive till new H-1B is approved, does my current employer have to do anything to help me? or does my current employer has to file H-1B on Sep 23?
tuart Jonas ReichImmigration AttorneyNew York, NY ·
This is an extremely complex situation, and you should really speak with an attorney. We would need to know more to answer your questions.
While it is technically possible to change status to F-1 here if you have been maintaining valid status, there are issues here. Without either of you working, meeting income requirements may be an issue. Proving maintenance of valid status may be an issue depending on exactly when you are terminated in relation to when the application(s) is/are filed. These change-of-status applications can take from four to six months, and chances are the academic program in which your husband is enrolling starts sooner than this.
Although I think I understand what you are trying to do in pushing out the end of your sixth year by switching to F status and then back to the remainder of the H-1B later, thus essentially pushing the "365 days from end of H-1B" period backward for purposes of H-1B extensions beyond the sixth year, I'm not at all clear that this will work. Approval would only come much later, with you actually being here past the current sixth-year expiration - so I think you will be seen as having used up the H-1B time as things stand. Speak to a lawyer about the possibility of "recapturing" time spent abroad during the initial six years - a far more likely scenario.
I'm a bit confused by the reliance on the pending PERM case still being alive - this case confers no status at all, and if the employer isn't continuing to hold the permanent offer of employment open to you for when an eventual green card case is approved it loses all validity with regard to any future green card possibilities when you separate from the company. Moreover, if they aren't still offering you a job, I don't see how the current employer CAN file a new H-1B for you.
I think there are several things here that need to be discussed and/or straightened out with an attorney, and I suggest you speak with one quickly.
