H1B about to Max out with no recapture time and Perm applied 6 months earlier pending

Hi, I am an Indian and working on H1b which is maxing out on May 15, 2022 (including any recapture time). My PERM was filed on Nov 08, 2021. Looking at the timeline chances are that I won’t be getting an H1b extension before the max out date( May 15, 2022). I wanted to check my options. Should I file for a Change of Status from H1 to H4 based on my wife’s H1B and stay in the US and wait for the PERM and I140 to be approved or should I leave the States before H1B max out and wait in India for the PERM and I140 to be approved and get H1B extension?
If I file a change of status to H4 and stay in the US once the I140 is approved can the H1B extension be still filed, even though I might have stayed past my H1 max out date? and would it be cap-exempt?

Either way will work, do what isbbest suited for you. You can also consult your employer’s immigration lawyer and seek their advice.

Make sure you stop working with few days still left on your 6 year H1B term and file for H1B to H4 COS or travel outside the US and wait in India till I-140 is approved. If you go with COS to H4, you can file H1B extension in premium with COS gtom H4 to H1B once your I-140 is approved. Otherwise if you are in India you will need to go for H1B stamping once your extension of status for H1B is approved with consular processing.

@Kalpesh_Dalwadi Thanks a lot for the information. I have a few follow up queries regarding the same:

  1. “Make sure you stop working with a few days still left on your 6-year H1B term and file for H1B to H4 COS” So the intended date for H4 should be kept a few days before the max out or will this be based automatically on the date of COS filing? Also if COS is pending and I am still in the US will that be considered that my H1B is maxed out?

  2. If my COS is filed and pending and I get the I140 approved, I assume I would need to travel outside to get the COS canceled and get the H1B stamped?

  3. Also if I file for COS would I have to resign or can I be with the employer on a Leave without pay? (LOA).

  4. Does Consular processing also have premium processing for H1B?

Thanks again for the information and your help is very much appreciated.

Thats why you need to stop working while fww days are left.

Yes if you want to switch back to H1B asap.
If you dont want to go for stamping, you can still file for H4 to H1B COS while H1B to H4 COS is pending. I would suggest filing H4 to H1B COS with H1B extension of status in premium so that USCIS will be forced to approve your pending H1B to H4 COS to be able to approve your extension of status along with H4 to H1B COS.

This is something you need to discuss with your employer and their immigration lawyer.

Consular or extension status can be done in premium.

@Kalpesh_Dalwadi Thanks a lot again for the excellent information

Do you by any chance have an idea on how long it takes to file COS(as I probably have a week left to file it)

Also regarding company’s decision about keeping me in a LOA status or resignation does it mean legally I am allowed to be employed without pay?

I know this might be too many questions but thanks for the patience and information.

As long as it takes you or your attorney to file it.
You can file online also which can fasttrack the filing.

As long as employer-employee relationship exist during the period of LOA it is allowed for extended period, however how long depends on your company policy. Talk to your HR asap.

@Kalpesh_Dalwadi Thanks again for the answers.

The attorney has mentioned below, as per which I am still not clear whether I can take LOA

When you file a change of status to H4 you would have the start date be the first date after your H-1B expires. You cannot work after your H-1B expires. Typically you can’t volunteer (work without pay) for an employer unless the role is usually a volunteer role.

Can you please suggest your thoughts on the above?