1. EB-1A was approved; there are options for your spouse to maintain legal status
A reader asks:
My EB-1 has been approved, and I plan to file my I-485 next month. I have a NIW visa cutoff for December 2022, so I can file. My wife just quit her job a few days ago. I was thinking that since my I-140 was still a long way off, I’d switch from H-1B to H-4 and take a break, then look for another job after getting my Combo EAD. But then, my EB-1A was approved, and my wife has officially submitted her resignation to her employer, so she can’t continue working and maintain her H-1B status. However, since I have almost all the documents ready, there should be no problem filing the I-485 within the next two months. If my wife’s H-1B grace period is still in effect, does she need to first file an H-1B to H-4 conversion and then file an I-485?
Alan Lee Esq. answers:
There appear to be three situations for your wife. The question is which one she wants to take, and this may have to do with gambling on the experience of the USCIS adjudicating officer.
The one option that everyone understands is filing to change status from H-1B to H-4 since a timely request to change status preserves nonimmigrant status. The second option to file the I-485s within the 60 day grace period allowed for individuals on H-1B who leave or lose their positions. This requires more understanding from an immigration officer that the H-1B holder is legally in status during the 60 day grace period. The third option is to file outside the 60 day grace period relying on an immigration provision, §245K, which allows up to 180 days for a person not in status to still be able to file adjustment of status applications so long as the application is employment-based and the individual entered the US with a visa. This requires a little more understanding from an immigration officer.
2. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa
A reader asks:
I’m a SWE2 at a Chinese company in H-1B status. I received notification this week that my I-140 has been approved. Over the past year, layoffs at various companies and the slow progress of my team’s projects have left me feeling extremely exhausted and often sleepless. I’m desperate for some rest. My family has been asking me to go back to visit my elderly family, so I’m considering returning to China. I’m thinking of taking this opportunity to return. I know that if I get my I-140 now, the green card wait time will be many years. Can I return to my home country now, then use my H-1B to find a job in the US in a few years, and then return? I can skip the lottery and apply for a new perm and I-140, ensuring my status is complete by the time the wait time comes. Is this feasible? Another question: My H-1B expires in September of this year, and my company has already applied for an extension, effective in September. How will this affect my return to my home country?
Alan Lee Esq answers,
Under your first scenario of going back to your home country and trying to come back to the US after a few years, you should be able to use the time that you have left under the H-1B to find a US job and return. You would avoid the visa lottery, and you may be able to have another company start up your PERM and I-140 processes picking up your priority date along the way. I assume that your concern about the H-1B extension goes to your other scenario of only returning to your home country for a short break and some travel with your parents and then coming back. For H-1B extension, you can return to the US during the time that the extension is pending or after it has been approved if you have a valid H-1B visa.