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Immigration Issues/Labour application for GC

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Question
Hi Ajay,

My husband works as a full-time employee for a company. His company applied for his GC Labor application on 15th January 2014. His H1B expires on 7th August 2014 which also includes any time spent outside US.
My husband's company says that currently USCIS is reviewing labor applications from July 2013 and there is a minimum 6 months gap until our application would be processed.

Since my husband has less than 6 months left on his visa, we are suspecting that he won't be getting the labor application approved + I140 approved + 1485 applied + H1B extended for another 3 years within these 4.5 months left. We asked his company's lawyers if it would be wise for my husband to spend sometime outside US (approx 2-3 months) by taking some time off and the rest by working remotely from India so that he gains more time on his current H1B visa. Now his company's lawyers are not saying much in this regard and are still saying that they are not sure if there is a need for him to spend some time outside US.

Also my husband gets e-mail alerts from his company about e-verifying I-9 form every time his visa expiration date is approaching.

In the event of not receiving labor approvals on time and thus not e-verifying form I-9 on time, we suspect that he might risk his employment by not taking precautionary measures (of spending some time outside US to gain some time on his visa).

What would you suggest about his situation. Should we try and convince his company lawyers to take necessary steps well before the expiration date? Are there any other steps that can be taken in his situation? FYI, I am also on H1B visa expiring in late 2015.

Regards,
Aditi

Answer
Hi,

Your husband has two choices prior to reaching 6 years in H1B status on August 7 if his PERM is not certified and I-140 approved (I-140 can be filed through premium processing): either file an application to change status to H4 (which will allow him to remain in the U.S. but will not authorize employment in H4 status), or depart the U.S. prior to August 7. There is no restriction on employment while outside the U.S. and once his I-140 is approved, the employer can file an H1B petition for him requesting status for 3 years. Upon approval of the H1B petition (it can be filed through premium processing), he can obtain an H1B visa from a U.S. Consulate (if outside the U.S. at that time instead of being in H4 status, for example) and enter the U.S.

Your husband should follow up with his company attorneys for any followup, as this is very case specific.

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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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