“I-485 pending only”, have to travel out U.S.A to get H-1B visa? Help with opinion!!!

M

ming zhang

Registered Users (C)
Hi all,

I used F-1 visa to file I-140 (NIW EB2) and got approved. In April of 2002, I filed I-485 and my status was immediately switched to "I-485 pending", no longer F-1. I work in the past two years using my EAD card and keep this "I-485 pending status" till now.

My I-485 (Texas center) will be completed in several months. However, my son (7 years old) is now in China and I want to bring him here as soon as possible.

I do not want to do the general "follow-to-join" procedure for my son to immigrate here because this will take around 2 years (i.e. my I-485 approved, file I-824, wait for 1 to 2 years, my son go to consulate abroad for interview...).

Now my plan is to apply for H-1B visa for myself, then let my son apply for H-4 in China. After my son arrives here (hopefully my I-485 has not been processed), immediately let him file I-485. Then my son can stay here with me until his I-485 is approved.

I work as a postdoc in a U.S. university and my university can apply for H-1B visa for me. I would like to do the premium application (pay extra $1000.00 and be done in 2 weeks). In this way, I think I can get the H-1B visa very soon.

However, my question now is: Must I leave U.S.A first, then get H-1B stamped in a U.S. embassy or consulate abroad such as those in China?

Since my current status is “I-485 pending” and H-1B is a new VISA status for me, do I have to travel out of U.S.A?

Please help with your opinions!!! Thank you very much!!!
 
As I had stated in a thread you started before you WILL need to depart the country and re-enter for the H1-B to take effect. Irrespective of that there is NO quota for H1-B for this fiscal year. premium processing has nothing to do with it. Premium processing will come into effect only in Oct. '04 when the new fiscal year starts.

Here is a snippet of a converstaion my attorney and I had sometime ago (ALL CAPS IS THE ATTORNEY):

a) If we apply for this and it is approved does it take effect ONLY when
I go out of the country and come back?

THAT IS CORRECT, FOR THE H-1B STATUS TO TAKE EFFECT YOU WOULD HAVE TO LEAVE THE U.S. GO TO A U.S. CONSULATE AND GET THE VISA AND RETURN.

b) If I have an approved EAD and an approved H1-B petition BUT I don't
go out of the country what is my status? Is it still AOS on EAD?

WITH AN APPROVED EAD AND APPROVED H-1B IF YOU DON'T DEPART THE U.S. THEN YOU ARE STILL CONSIDERED TO BE HERE AS AN AOS APPLICANT WITH AN EAD.

c) Do I need to go out of the country for this H1-B to take effect? What
if I don't?

YOU NEED TO ACT ON THE H-1B APPROVAL NOTICE WITHIN 6 MONTHS OF APPROVAL. FAILURE TO OBTAIN THE H-1B NONIMMIGRANT STATUS PUTS YOU AT RISK OF BEING IN THE U.S. WITHOUT STATUS AND WITHOUT WORK AUTHORIZATION DEPENDING ON THE ADJUDICATION ON THE PENDING I-485 APPLICATION.
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Again YMMV, IMHO.
 
Last edited by a moderator:
bags3 said:
YOU NEED TO ACT ON THE H-1B APPROVAL NOTICE WITHIN 6 MONTHS OF APPROVAL. FAILURE TO OBTAIN THE H-1B NONIMMIGRANT STATUS PUTS YOU AT RISK OF BEING IN THE U.S. WITHOUT STATUS AND WITHOUT WORK AUTHORIZATION DEPENDING ON THE ADJUDICATION ON THE PENDING I-485 APPLICATION.
Click to expand...

No.

One of two things will happen - either your H-1B approval includes a change of status to H-1B, or it doesn't. If it doesn't include a change of non-immigrant status (you can tell if the approval notice includes an I-94 at the bottom right) then you are not in H-1 status until you leave and re-enter the US and therefore no status violation can occur. If it does involve a change of status, then you need to ensure that you are meeting the terms of your H-1 by working for your petitioner. Since you already are, this isn't an issue.

Either way, there is no requirement that you get a visa stamp at any point in time. There cannot be such a requirement, since there are classes of aliens (such as Canadian citizens like myself) who are statutorily exempt from the passport visa requirements and have never received a visa stamp.

Now, to bring your son to the US you might need to leave the US. If you have a change of status, you can merely provide a copy of the I-797 to the consulate and your son can get an H-4 passport visa and come to join you. Based on his age this may not be feasible, or you have not received a change of status. In such a case, you will need to leave the US and re-enter and therefore will need a visa stamp in China. You might be able to get one at a US consulate in Canada but if you need to pick up your son in China then China is a better bet.

Hope this clears matters up a bit for you.
 
TheRealCanadian

Like I said the response in ALL CAPS was my company attorney's. So the one you quoted was what I was told by the attorney. I am not sure if there are a different set of rules one needs to play by if you are changing over from the AOS world to H1-B Vs. say from F-1 to H1-B. I know that if you are changing over from F-1 to H1-B there WAS no need leave and re-enter the country. Post 9/11 a lot of these rules have changed and the whole immigration thing has become very nebulous.

Also I would think Canadian citizens would be viewed differently from say an Indian citizen for such things. I might be wrong about this.

The only person who can guide you in things like this is a competant immigration attorney. Consult one.
 
No reqirement to leave

I can confirm what RealCanadian says.

AFAIR, you must file for adjustment of status with H1B petition, you will not get it by default. If you receive approval, a new I94 with your original departure number attached to the decision is a good sign your status is adjusted to H1B.

If you get h1b with adjustment of satus, it should be enough to send the approval notice to your son, so he can go to consulate to get H4. My wife and son and got their H4s like this (it was Europe though, so YMMV).
 
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