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H1B expiration after 6 years and F1 COS approved and working on CPT

Hagerstown, MD |

I have been in U.S for past 10 years, first on F1 Visa and later on H1B. My H1B was set to expire Sept 30th 2009 and my labor has been delayed due complications. In July 2009, I got I-20 for an M.B.A at a local university and applied for COS. USCIS has approved MY cos and issued I-797 with I-94. My company would like me to continue working and I told them about my inability to work on F1. But while investigating I found that my university would allow me to work on CPT(40 hrs) from 1st semester while taking 9 credit hours on weekends. My company has started the labor process and will file labor by end of Nov. If I work on CPT in related area (Project Mgmt -my current job), is it going to be a problem if I try to extend 7 th year H1B base in 2010 after recapture and 1 year of pending labor?

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Attorney answers 2


An interesting question. The question is really this. Can I get a 7th year H-1B after i have been off H-1B for one year in F-1 status?

The answer is, CIS has not cleary answered this question. I know we have successfully filed an H-1B in exactly this situation, but I do not remain convinced that for policy reasons USCIS willl approve it every time. The thought by CIS would be that since your not in H-1B status, you cannot extend it another year, plus the memos they have speak directly to filing the Labor Cert before the end of the 5th year of H status concludes. Bottom line, however, is that is worth a try, becuase your worst case scenario is that you remain in F-1 status.

Best regards,

Charles H. Kuck
Managing Partner
Kuck Immigration Partners LLC--The Immigration Law Firm
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You will be able to file for a 7th year H1B once your Application for Labor Certification has been pending for 365 days.

Separately, you can recapture either 1) time spent outside the US during your H1B petition period or 2) time spent in the US after your Change of Status. Either must be documented.

Beware that spending too much time in CPT (12 mos) will make you ineligible for OPT upon graduation.

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