I have an approved I140 based on which my spouse obtained an H4-EAD and commenced a new employment in Nov 2015. She has been on H4 status since Dec 2013, but had a previous H1b petition that was valid till Sep 2015 from prior employment. With the current uncertainty regarding H4-EAD,
1) Would it be possible to revive her lapsed H1b for a transfer to her current employer?
2) Would it be possible to re-capture unused time on H1b while she was on H4?
Thank you very much for your time and guidance.
1. Yes, as long as she still has enough time left on her H-1B maximum 6 years total allowable period.
2. No. Such "recapture" is only possible for meaningful time one spends abroad and not in the US on a different status.
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Both your questions are interchangeable. You may seek to recapture any unused time on H-1B.
This response is general in nature and cannot be construed as legal advice, given that not enough facts are known. Any comments offered on Avvo are of a general nature only, and are not meant to create an attorney-client relationship. You are encouraged to seek independent and private counseling for a complete review of your case.
Only time in the US in a valid H1B status would count against the 6 year maximum for an H1B unless an extension beyond the 6 year maximum is available through AC21 (for her not through your I140). The employer would need to be willing to file for her H!B, and the amount of time remaining would be according to her unused H1B status in the US. The wife's employer's immigration attorney should be able to answer questions about this for your wife.
Only time actually spent in the US in H-1B status counts toward the 6 year cap other time may be recaptured.
Attorney Robert Brown's (former INS Director, 1972-99) reply to your question is general in nature, and does not constitute legal advice as all facts are known to him. For specific advice or representation you should retain an attorney experienced in immigration law. Mr. Brown's reply on AVVO does not create an attorney/client relationship not constitute legal advice.
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