1 year left for H1B 6 yr limit, perm not yet filed

USA H1B
1

This is my 6th yr on h1b. Before this, I was on L1b. My current company started gc process but recently did some layoffs and as a result gc process is stuck now. My current h1b is valid till 30 april 2021.

My spouse has an approved I140.

From what I understand, my employer can file a perm and I140 and it most likely is not going to be approved before my visa expiry. So one option could be to apply for h4, ead about 6-8 months before th expiry so that if needed I can continue to work on h4ead. If the perm and I140 is approved after the visa expiry, I can then switch back to h1. Is that correct?

I am concerned about my company having another round of layoffs in future, closer to my visa expiry leaving me in no condition to save my h1b. In order to avoid that, I am thinking of apply h4, h4 ead right away. Assuming it takes 4-5 months to come through, I can then start working on h4 ead so that even if there are layoffs, I can quickly find another exmployer who is filling to file my perm application before it hits the expiry.

  1. Is there something that might be wrong with the above approach? My intent is to save the current h1b and avoid lottery. Any potential issues I am overlooking?

  2. Once the perm and I140 is approved, would I need to file another petition for change of status from h4 to h1 (with same/diff employer) ?

2

There might be gap between H4 and H4EAD approval. You cannot work using H1B if H4 is approved but EAD is pending.

You will need to file H4 to H1B to get back to H1B status.

3

Thanks, what is the usual time taken and is it common to have a gap ?
In order to move back to h1, will that be a change of status and how much time does it take on an average without premium processing?

We are thinking of switching to h4, ead so that if there is a layoff we can switch in less time to another employer who can file our perm before expiry.

4

H4 COS usually takes 8+ months.
H1B COS in regular might take 6 months.

It all varies by the service center and the time of year.

H4 to H1B will also be a COS.

5

Thanks. If I move to h4, can my employer continue my perm process ? Or would that be invalid if my EAD comes after a couple of months of H4 and I have an unemployment in between.

6

PERM process has nothing to do with your H1B or H4. It can continue with or without the H4.

7

How do companies generally handle this scenario? do people take leave without pay during the gap (while EAD is pending) ?

8

The Employment should be terminated and then person should be rehired to be on safe side.

9

Also if we were to join a new employer on h4 say a couple of months before the H1b expiry, and the employer is ready to start the perm process, can they continue to process the perm? Can we then file a cos to cap exempt H1b once the i140 is approved?