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H1B Expires Before Number Becomes Current - what to do ?!

J

jankes

Registered Users (C)
Hi, I believe that my situation is fairly unique and would love to hear from you. If any of you had the same/similar situation and can share their experience, that would be fantastic! So here it is...

My H1B (second 3rd year) expires on May 21st. If my number becomes current in May bulleting (around the 10th), I'm good. However, looking at how slow EU numbers move this year, I may not be able to file my I-485 and I-765 until around June or maybe even July. I have not left the country while on my H1B, so I can't claim any time outside of the US to extend my H1B. Here is my question:

- What options do you recommend?
--- I know that I can apply for an adjustment of status to a B1 visa, however if it is denied, than I may be out of status starting on May22nd (my understanding is that there is no grace period after your H1B expires). I wonder if any one has any similar experience? What are the chances of having the B1 denied. Between my F1 visa, OPT, and H1B I have been here over ten years - spotless criminal record, always paid taxes, got married here (not US citizen), and have a two year old son (born here, US citizen). I understand that the decision is discretionary, but I wonder, if my history here helps or is against my case.
--- I know that I can go back to home country and change to CP from AOS, but I definitely prefer not to.

- Is there really no grace period after my H1B expires. If my number becomes current on June 10th, let's say, it is only 20 days between when my H1b expired and I file my I-485 and I-765. Any thoughts?

Thank you
 
Two things I can say with regards to your situation:

1. You cannot do AOS on a B1 visa (that is, if your B1 visa gets approved).
2. Applicable DV Visa numbers become current at the beginning of each month, not the 10th of the month

jankes said:
Hi, I believe that my situation is fairly unique and would love to hear from you. If any of you had the same/similar situation and can share their experience, that would be fantastic! So here it is...

My H1B (second 3rd year) expires on May 21st. If my number becomes current in May bulleting (around the 10th), I'm good. However, looking at how slow EU numbers move this year, I may not be able to file my I-485 and I-765 until around June or maybe even July. I have not left the country while on my H1B, so I can't claim any time outside of the US to extend my H1B. Here is my question:

- What options do you recommend?
--- I know that I can apply for an adjustment of status to a B1 visa, however if it is denied, than I may be out of status starting on May22nd (my understanding is that there is no grace period after your H1B expires). I wonder if any one has any similar experience? What are the chances of having the B1 denied. Between my F1 visa, OPT, and H1B I have been here over ten years - spotless criminal record, always paid taxes, got married here (not US citizen), and have a two year old son (born here, US citizen). I understand that the decision is discretionary, but I wonder, if my history here helps or is against my case.
--- I know that I can go back to home country and change to CP from AOS, but I definitely prefer not to.

- Is there really no grace period after my H1B expires. If my number becomes current on June 10th, let's say, it is only 20 days between when my H1b expired and I file my I-485 and I-765. Any thoughts?

Thank you
Click to expand...
 
which cialosit

Sm1smom said:
Two things I can say with regards to your situation:

1. You cannot do AOS on a B1 visa (that is, if your B1 visa gets approved).
2. Applicable DV Visa numbers become current at the beginning of each month, not the 10th of the month
Click to expand...

Thank you, Sm1smom.

Visa bulletin usually comes out around the 10th of the month. My understanding is that once your number is listed there, you can apply for AOS.
 
i dont think it's possible to do AOS on B1. besides waiting for USCIS decision about change of status might take couple of months. while waiting for the decision you are legal but out os status (as your H1B expired) so anyway you are not eligible for AOS.
 
Dziecka said:
i dont think it's possible to do AOS on B1. besides waiting for USCIS decision about change of status might take couple of months. while waiting for the decision you are legal but out os status (as your H1B expired) so anyway you are not eligible for AOS.
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I am also pretty sure you can't do AOS on B1, mainly because you probably won't even get a B1 since B1 is not a dual intent visa; to get it you should convince the consulate that you have ties to your home country and have no intention to immigrate. If I were you, I'd go back to my old school's international office for advice, or at least ask them to suggest an immigration lawyer that they work with. In your case, it's cutting it pretty close so it is very risky not to do anything and hope that you'll be able to file before your visa expires. Being out of status is not an option. You should seriously start considering doing a CP unless an immigration lawyer can give you specific advise about how to extend your stay here.
 
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Well, getting B1/b2 status is generally not that hard. i personally know coupe of people who already did that. but in your case it might be more difficult as you already have your dv green card process started.
and anyway.. as i wrote above. while waiting for the decision, even though you are considered legal, you are out of status so AOS is not an option.
 
There's no prohibition against filing an I-485 when in B status. The challenge is that the visa number does not become current on the 10th when the bulletin is released; it takes effect on the first of the following month.
 
Dziecka said:
Well, getting B1/b2 status is generally not that hard. i personally know coupe of people who already did that. but in your case it might be more difficult as you already have your dv green card process started.
and anyway.. as i wrote above. while waiting for the decision, even though you are considered legal, you are out of status so AOS is not an option.
Click to expand...

To clarify;
1) Green card process has not started until I-485 is submitted. But I'm assuming forms to KCC has been sent to let them know the intention to do AOS, so getting a B visa is pretty much out of question.

2) "Considered legal" and "out of status" do not really apply at the same time. If you are out of status, that means your I94 expired and you overstay your visa. If you already submitted I-485 and it is pending before your I94 expires, you should be fine. Whether you are authorized to work is another matter.

But please check with an immigration lawyer regarding both statements. We only write our unqualified opinions.
 
ok. i totally agree with you that switching to B status might be hard in his case and he already sent the forms to KCC.
However to change the status to B he would have to send to USCIS form I-539. once this form is sent, assuming USCIS sent him a notice that they are working on his case, and his I94 expired he is still considered legal (because the case is pending), but is already out of status. if he gets the approval of I-539 then he is on his new status (B) starting from the date when his I94 expired. then he can do adjustment of status (as somebody said above). but if B status is denied then starting from the next day after the decision was taken he is considered illegal and he cant file for AOS
 
TheRealCanadian said:
There's no prohibition against filing an I-485 when in B status. The challenge is that the visa number does not become current on the 10th when the bulletin is released; it takes effect on the first of the following month.
Click to expand...

Indeed, TheRealCanadian is right about there being no prohibition against doing AOS iin B Visa status. However, I think further clarification/additional information may be of help to the OP.

B1/B2 visas are not dual intent visas, applying for a B visa with intent of AOS is could land the OP in jeopardy of loosing his DV lottery opportunity. If USCIS for some reason believe that the B2 visitor lied while applying for the B Visa and the intent was to undergo AOS, the AOS might get denied. People in certain nonimmigrant visa categories are not supposed to intend to file I-485 Those non-immigrant visa categories include B-1/B-2 Visitors, F-1 Students, J-1 Exchange Visitors, E-3 Visa Holder, Q Cultural Exchange Visitors, TN Visa Holders, and ESTA Visa Waiver Visitors.
 
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Dziecka said:
ok. i totally agree with you that switching to B status might be hard in his case and he already sent the forms to KCC.
However to change the status to B he would have to send to USCIS form I-539. once this form is sent, assuming USCIS sent him a notice that they are working on his case, and his I94 expired he is still considered legal (because the case is pending), but is already out of status. if he gets the approval of I-539 then he is on his new status (B) starting from the date when his I94 expired. then he can do adjustment of status (as somebody said above). but if B status is denied then starting from the next day after the decision was taken he is considered illegal and he cant file for AOS
Click to expand...

Mostly agreed :) The problem is it is illegal to enter the country on a B visa with the intention to immigrate. I am assuming that changing to the same status while in the country with intention already made clear is also illegal. Apparently there are a lot of cases out there where people come here on a B visa, they find the love of their lives, get married, and then apply for AOS. For those, it is OK to do AOS because they did not enter the country with the intent of immigration. Telling USCIS that you want to change to a nonimmigrant status so that you can apply for immigration is not exactly wise. Again, lawyers know best.
 
Sm1smom, once again, very clear explanation. That's exactly what I meant, with the exception of marriages as I explained.
 
Getting back to the original poster, did your employer never start an EB Green Card for you? What did they expect would happen on 5/21?
 
Thank you all for responses, I really appreciate it. So other than praying for numbers to go faster, what do you suggest I do?
 
TheRealCanadian said:
Getting back to the original poster, did your employer never start an EB Green Card for you? What did they expect would happen on 5/21?
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My employer did not file for EB Green Card. I was pretty much ready to pack and go back home when we found out that we were selected in DV2013 - pure blessing and joy it was. I really hope that I can make it work somehow.
 
Darn. If your employer had started the GC for you a year ago you could have extended the GC beyond 6 years. It looks like your best bet is a temporary return to your home country and getting the immigrant visa via CP.
 
Jankes,

My observation based on both you and your wife completing AOS.
Option 1- As stated by TheRealcanadian you can both apply for B1 visas.

Option 2- Change to f-1/f-2 status with a start date of June. You can possibly attend a community college.

The dual intent issue does not arise as with visa(embassy) cases. USCIS is not aware of your DV selection. KCC is a separate entity from USCIS and does not notify them of your selection.

You would need to send paperwork atleast 3 months before H-1b expires. I think it is taking USCIS this long to review and make decisions on this applications.
Other items to ponder are that for the DV interview at USCIS office you will need to get a sponsor as you will not be on H-1b.
 
kazore said:
Even if your visa is about to expire you can ask an I-94 extension.

Take a look there your employer will have to send an I-129 form. You'll certainly need an immigration lawyer.
http://www.uscis.gov/USCIS/Resources/C1en.pdf

The simplest would be to do CP.
Click to expand...

Agree, you need to talk to an immigration lawyer ASAP. Chances are your number will not be up before your I94 expires, and you definitely do not want that. I wouldn't rely too much on B1/B2 route, doing a CP really seems to be the safe way. You do not want to waste this opportunity by taking chances with immigration regulations.
 
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