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Immigration Issues/Change of Status from F-1 to H-1

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Question
I came to U.S on L-1 on Feb 2005 and then converted to H-1 on Dec 2007 and the total six years CAP on (L1 stay+ H1 stay +recapture of stay outside U.S) ends on June 1st 2011.

My PERM was applied on June 2010 and it got denied, my company has appealed the denial and on the web site my PERM status shows In Process.

I changed my status from H-1 to F-1 and F-1 status was approved on 12/1/2010 and now I am on F-1 and working on CPT with the same employer.

I have to go to India in June 1st week and I feel it is better to change my status back to H-1 as I have six months of H period from the six years CAP, because the university I am studying now is not accredited and I am not sure how safe it is to go for F-1 stamping.

My employer is ready to do the change of status from F-1 to H-1, the question I have is can my employer apply for the 7th year extension along with the change of status application from F1 to H1 or should they first apply for the remaining 6 months H-1 period on the six years cap and then subsequently apply for the 7th year extension

I would really appreciate your help on this

Answer
Hi,

You are not eligible for extensions beyond six years, as PERM denial (even if subsequently appealed) does not allow for extension of H1B status beyond six years, unfortunately.

As decisions on appeal can easily take 2 or 3 years, your company should consider withdrawing the appeal (most appeals are unsuccessful) and filing a new PERM application. PERM can be certified in a couple of months after filing, and I-140 petition can be filed through premium processing, resulting in decision within 15 days of filing. Once I-140 is approved, extensions beyond six years are possible based on I-140 approval, even if the new PERM application has been pending for less than one year.

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Ajay K. Arora

Expertise

I can answer your questions on employment and family-based U.S. Immigration Law. Expertise in various immigration categories includes the following: H-1B, L-1, O-1, PERM (labor certification), EB-1 to EB-3 I-140 employment-based immigrant petitions, family or fiance(e) or spousal sponsorship, visa extension or change of status, adjustment of status, naturalization (citizenship), etc.

Experience

Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

Organizations
American Immigration Lawyers Association (AILA) full member since 1995.

Education/Credentials
Ajay K. Arora attended Pennsylvania State University and the University of Wales at Swansea (United Kingdom), and earned his law degree at Temple University School of Law, Philadelphia, in 1993. Mr. Arora has practiced Immigration Law since graduation and is a member of the American Immigration Lawyers Association since 1995.

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