H1B 6th year extension without Premium Processing

Hi Anil,

Thanks for answering questions on my other posts.

My H1B extension for recapture time that was spent outside the US during 6 years was filed in Oct 2018. The extension is up to March 2019.
Since there is a hold on premium procession right now, my questions are

  1. What would happen if the case is still pending, up until March 2019?
  2. Is there any possibility that the premium procession hold will be lifted any time soon?
  3. If I get my PERM and I140 approval before the H1B extension, would I still be able to work and live in the US or I’ve to leave the country in March 2019?

H1B extension pending after 6 years

You can stay and work in USA as the extension is pending and was filed based on pending PERM more than 365 days or approved i140.

H1B premium processing suspension end date

At this time, the suspension is supposed to end on Feb 19, 2019. I hope USCIS does not extend it.

PERM Pending or i140 pending

You can apply for H1B 7th year extension if your PERM is pending for more than 365 days or i140 is approved.
If none of these conditions are true, you should leave US and wait for the result outside.

Thanks Anil.

My H1B was not filed based upon an approved I140. My PERM is not yet filed. It will be filed in Nov. So this gives me approximately 4 months to get the PERM and I140 approved.

The possible scenarios are

  1. H1B gets approved before March and PERM/I140 too. Then a new H1B can be filed based upon the approved I140 before the H1 expires in March.

  2. H1B and PERM stays pending till March 2019.
    Q: Would I be able to transfer to F1 or B1 visa and then back to H1 after it is approved or when I request a visa transfer, H1 will automatically get voided?
    Q: Would I be able to travel outside the country when H1B is pending?

  3. H1B is pending till March 2019 and I140 is approved?
    Q: Would I be able to work and stay in the US past March 2019?

Thank You

Transfer to F1 is possible

You can transfer to F1 with change of status application but make sure you file it timely as your status does not change until the COS application is finally approved.

Don’t change to B1 as your intend is H1

I would not advise to change status to B1 as you want to change back again to H1B later.
This is considered conflict of interest and you may get an RFE if USCIS doubts your intentions.

H1B validity after 6 year completion

I am assuming that your current H1B extension without PERM and i140 has been filed for work authorization till last day of your 6 year completion.

If the application is still pending on the last day, you have no choice but to go out of USA. This is because the validity that you requested has already passed it’s date and even if it is approved, you can’t work past the last date.

H1B travel while extension is pending

I don’t advise to travel as anything can happen with USCIS in today’s unexpected RFEs.

Work in USA after 6 years and i140 approved

You can only work past H1B 6th year if your H1B extension has been filed before your last day of 6th year BASED on i140.

H1B validity after 6 year completion

I am assuming that your current H1B extension without PERM and i140 has been filed for work authorization till last day of your 6 year completion.

If the application is still pending on the last day, you have no choice but to go out of USA. This is because the validity that you requested has already passed it’s date and even if it is approved, you can’t work past the last date.

Q: So, if I leave on on the last day of my 6 year completion or before that, would they still work on my application or voids my application because I’m out of country?

Q: Would I be able to apply for new H1 based on an approved I140 after the 6 year completion? and from out of country?

Q: What is the COS process and how long does that take?

File H1b Extension using i140 from outside USA

It is usually recommended to NOT use all 6 years to avoid issues with USCIS.
Attorney’s recommend leaving USA 60 days before you complete your full 6 years.

If not 60, then try to leave around 10-15 days and try not to complete your full 6 year quota.

This is helpful in filing H1B extension from outside USA using approved i140.

H1B to F1 Change of Status

You should file change of status well before you want to use it. The status changes only when it is approved by USCIS and USCIS takes good amount of time for approval as well.

Hi Anil,
I am re-starting this thread to get help as I have too many questions and getting stressed.

So, my H1B 6+extension (applied in Oct 2018, expires in Mar 2019) and PERM (applied in Nov 2018) is still pending.

What would happen if it still stays pending in March and what are my options?
One option is to leave the country.
Q. But if I leave the country when H1B application is pending, wouldn’t USCIS dis-approves the application and may create future problems too?

Another option is to get enrolled in a college and file a change of status from H1 to F1.
Q. Can I file for COS when the H1B application is pending?
Q. Am I and my wife (H4) allowed to stay in the country while the COS is pending (as it is taking months)?
Q. If the classes starts in summer, would I be allowed to stay legally beyond March? I know I cannot work until I get a CPT.

Q. Is there any other option?

Meanwhile, if I get I-140 approved in premium,
Q. Can my company file for another extension application beyond March while the previous one is still pending?
Q. If I apply for COS from H1 to F1 now and it stays pending and I get I140 approved, would I be able to get back on H1B based on I140 to start working?

Thank you

H1B application pending on last day of H1B 6th year

What is the validity period that you have applied on your H1B application?
I am sure it is March 2019 anyway.

So, as i already already above, how can you stay beyond the time period requested in your application even when application is pending with USCIS?

File COS while H1B application is pending

Yes, you can file COS when H1B is pending. But, you will be adding complications to your case.

Stay in US while COS is pending

It depends on what COS you are filing.
I do NOT recommend to stay in US if your case is pending after 6th year. To have good chances of H1B extension after 6th year, you should leave US leaving about 60 days of gap.

COS to F1

You cannot stay in US without a valid status. If you are planning to change over to F1, F1 should be approved.

If F1 is denied later, you will be out of luck.

File H1B extension with i140

Yes, a new H1B extension can be filed with approved i140 for time after March 2019. That’s the right way of doing it.

Apply F1 COS and move to H1B later

As I said, you are adding complications, you will be in F1 status if it gets approved before H1B.
and then you will have to file another H1B to F1 COS to get into H1B status!

Just want to clear, you mean to say, “Yes” there can be a new H1B extension petition while one is pending, right?

Thank you for all the answers.

As per my understanding, you have filed H1B extension to recapture time till March 2019.

If you get your i140 approved, you will file a new H1B extension with start date as April 2019. Isn’t it right?

Yes. My concern is, can we file for extension with start date as April 2019 while the recapture time petition is still pending? Sorry, if I am confusing.

Yes, you can file H1B extension even if the recapture time H1B extension is still pending.

1 Like

Hi Anil,

My H1B extension petition was upgraded to Premium Processing after it was lifted and is approved till March 17, 2019. But my wife’s H4 petition is still pending.

We are planning to leave the country before the H1 expires (at least a week before), so as to be apply for new H1B CAP exempt after I-140 is approved.

My company’s attorney is recommending her to stay till the last day, i.e. March 17th.

Do USCIS not process H4 applications that are filed along H1, together?

Would this complicate her ability to get H4 in future if she leaves the country on the last day and visa petition stays pending beyond that date?

H4 extension is abandoned or denied if you travel outside USA

The reason your attorney is asking your wife to stay till date of your H1B approval is to see if she can get her H4 approved.

Once she leaves US, the H4 extension cannot be approved anyway.

H1B and H4 result together

There is no guarantee that both applications are approved together by USCIS.

There are no complications for future H4 as per my opinion. You are doing the right thing by leaving USA as you do not have a valid reason or approved petition to stay and work in USA.

Thanks Anil. Actually her H4 approval just came in. This simplifies things for us.
I really appreciate all the help you are providing on this forum.

Good to know. Enjoy.