Recapturing H1B time of H4 pending period

[goodluck123]

What is the name of your state (only U.S. law)? CA

Dear Attorney Lana,

I understand there is a rule about recapturing H1B time abroad. I would like to find out whether some of my previous H1B time could be recaptured.

I resigned from company A and filed the change status to H4 petition in June 2007. My H4 status was approved in Dec 2007. And then I changed back to H1B in Jan 2008 with the premium processing. And I have been on H1B status since then.

So my question is during my H4 pending period (June - Dec 2007), my status should be H4 pending. But in uscis record, I was still on H1B until the H4 status got approved. Do you think whether it is possible to recapture my H1B time of June - Dec 2007?

Truly appreciate.

 

[ImmigAttyLana]

There is no such thing as pending. Until the new status is accorded, you are in the original status so while you were waiting for the H-4, you were still in H-1B status and it cannot be recaptured.

 

[goodluck123]

Attorney Lana,

Thank you for the authoritative reply. I still hope to have a chance to argue this recapture possibility.

My H4 petition was filed in June 2007 and got approved in Dec 2007. If uscis provides a "H4 premium processing" as they do on H1, then my H4 petition could be filed with expedite service and got approved in June 2007. In that situation I could save about 5 months of H1B time.

I hope this argue could support the possibility of recapturing my H1B time.

I hope that I could keep a continuous employment before I run out my H1B time and get an EAD card (based on my husband's green card application). The 5 months just can help. So I am trying hard to see the possibility of recapturing H1B time.

I appreciate your advice.

 

[ImmigAttyLana]

No, that's not really a good argument from the standpoint of USCIS because filing a change of status to H-4 is not your only option in getting H-4 granted. You could have departed the US and obtained a H-4 visa and reentered on that visa as soon as you deemed it necessary to change your status to H-4.

 

[candg918]

OP,

You could have file for a COS to H4 and waited for notice before resigning your job.

It is well known that the processing time for a COS can be significant and that is much faster to exit for stamping and reentry. You likely did not want to do this because of the costs involved. That was your choice.

 

[Bulldog100]

H1B recapture from H4pending time

Dear goodluck123,
My wife is also in the same situation as you were in 2010. Did USCIS let you recapture your H1B from June to December 2007 (pending H1B)? Clearly you were not employed and were not getting paid during that time so technically H1b recapture should be allowed for that time.

Also if a person is single (not married to someone who is on a different kind of VISA H1 or F1 or L1 etc.) then in that case the person’s H1B is ended (person is out of status) the day as of resignation (or fired) from employment. Then why NOT USCIS ends H1B visa the same day as day of resignation for someone who is able and has applied for H4 and put them in “pending H4 status” or “authorized stay” or “tolling”.

I noticed that candg918 said, “You could have file for a COS to H4 and waited for notice before resigning your job.” What if someone was fired or laid off?

Your answer will be greatly appreciated.
Thank you very much!

 

[FlyingRon]

It is doubtful that anybody posing questions here is still around six years after the original post. You should start your own thread on your particular issue.

You're out of status once you no longer work for your H1B employer. It matters not if you quit or are fired. They're obliged to immediately notify CIS. If you apply for a COS while you still have legal status, then you're not accumulating illegal presence until a determination is made. If you don't start until you're out of status, you're in dire straights.

I suggest you contact an immigration attorney.