H1B Max Out Options


First, I would like to thank Redbus2Us for helping H1 Visa holders in the USA. Your opinion and feedback help a lot of H1 folks in the country.

I would like to post this question to understand a few things.

I have been working in the US on H1 Visa. My H1 Visa will max out by Jun10 2019. My perm is going to be filed shortly and I am not sure whether I would get my Perm approved before maxing out date.

I need your suggestions on below questions.

  1. Suppose if don’t get perm approved till the end of May, then I will be having only a few days before I get maxed out. What are your suggestions for me to handle this situation so that I can plan accordingly? Do I really need to go out of the country and get my Perm approved from outside the US?

  2. Say if my PERM approval is delayed or I140 approval is delayed and not approved until my max out date and if I have to continue working on my current job, can I continue to work by converting my status to F1? Is it true that I can obtain CPT if I convert my status to F1 before I max out and continue to work until I get my I140? If true, what are the challenges here?

Kindly share your inputs so that I can plan accordingly. Thanks in advance.


  1. If you are GOING to have your PERM filed and your max out is a couple of months away, its VERY UNLIKELY that you can continue your H status.
  2. F1 is NOT A WORK visa. Trying for CPT on F1 immediately is illegal. This is the reason for the recent University Students arrest and deportation etc(read stories online).
    Either get a University Admission get to F1 visa, go to classes for few months and then you may get a legal option of CPT, which gives you the option to work(mind it, there are many limitations on CPT work, its not like working on H1).
    The only alternative is to exit the country, wait for an year and apply for H1 in annual cap.

Thanks for your response.

My wife applied for change of status from h4 to f1 last year. Now we got an RFE last week. Say if we submit the response and if by any chance, she get her F1 in a few weeks time, can i convert to F2 and stay in US until i get my I140? Anyways i cant work on F2 but atleast stay at home until my new I797 (with approved I140) is available.

If we dont get her F1 before my H1 max out time, then the only option i have is to go to India and wait until i get the I140 and travel back on stamped visa.

Kindly share your thoughts whether i can convert myself to F2. Also i would like to know how much time i need to convert my status to F2 before i can legally continue to stay in US. My H1 max out is in mid-june and we are going to file the documents for F1 RFE this week.

Yes. once your wife gets F1 approved.

Not required. As soon as your wife’s F1 gets approved, you can join her on F2 and keep wiatiting till your PERM approved+one year OR your i140 approevd(then you can get on to H1 again).

Thanks for your prompt response.

Just to give you more details: I changed my employer 5 months back and transferred my visa. It also has to be noted that my visa transfer with this new employer is still in progress and I am awaiting USCIS decision on this. Moreover, the same employer filed my PERM recently. We have only a little more than a month before I will be maxed out of my 6 years (including recapturing the out of country days) on H1. Any idea how much time it is taken by USCIS to respond, when we respond to RFE received for H4 to F1? We are planning to respond this week. Is one month a reasonable time to expect a response on F1 change of status after submitting the RFE documents?

One more question, Is it straight forward and easy for me to become an F2 visa holder immediately after my wife gets her F1? Does it not take any time say like a few days or weeks? Any thoughts on this?

Kindly share your thoughts. Once again, appreciate your inputs and feedback.

Unfortunately, I cant predict the time lines of USCIS process. Sorry to push you further but due to the new H1 season filings already flooded along with the asylum seekers petitions mess, most of the USCIS cases are flowing slow.
One idea is to try making an infoPass appointment to your local USCIS(DOS) office with proper letters and good covering letter of your hardship to escalate the petitions. Sometime it work(It worked for me in a different case a couple of decades back). Good luck.

Thanks for your response again.

We will check with USCIS if we can get an appointment as you mentioned above.

Suppose if we don’t get the change of status from h4 to f1 approved before the max out day of my h1, is it legal for my spouse to stay until she get a response from USCIS on change of status to F1? Atleast if this works, we have an option for my wife to stay in US until she gets a verdict on her F1 status.

If above scenario is possible, whether there is a possibility for me to apply for a change of status to F2 while she wait for F1 decision?

Appreciate your advice on this. Thanks again.


I would like to follow up to check for your response.

Appreciate your time and inputs. Thanks


Technically YES, while a legal petition is pending(change of status), she can stay in US. But I dont have direct information to confirm this, pl double check with an attorney.

If you want to apply for F2, there must be a valid F1 in existence for your spouse. Without that, I think you cant file a petition(or such petition would be denied right away).
You should have filed your spouse’s F1 and your F2 conversion together last year(but I know you are on current valid H1 at that time.) its an egg and chicken issue.
I would suggest a smart lawyer can give you a better work around.
I strongly think there is some work around for you, but I am not sure what it is exactly.
You also may file for your own F1 now.

Thanks a lot for your response. I will definitely meet with an Attorney and discuss more.

I was also hearing about grace period for over stay. After my H1 is maxed out, is there any grace period like 30 days or 60 days upto which we can stay and wait for Perm result?

Also another question regarding my H1 transfer. My H1 transfer is still in progress. Even though i get maxed out in June, if USCIS has not taken any decision on my h1 transfer by then, would that give me an option to stay until we get a decision from USCIS for the H1 transfer?

Kindly share your thoughts. Thanks

Grace period is NOT for normal H cases. Only a H1 visa holder is fired by the H1 employer. That too after max out, it doesnt work, without a valid extension reason.

For this case also, once you maxed out the totaly days, your case would denied immediately but its REALLY a gray area if you can be legally in the country during its pending time. Most likely you may get the benefit of doubt (whether you are illegal since you have maxed out OR you are legal since your pending extension case). I personally dont take chances around these kinds of small benefits if I plan my permanent immigration here in long term.

What was the outcome? Were you able to continue your stay on f2 and had your i 140 approved?