The good practice is to request 3 years H-1B extension if you are qualified for (meaning you have an I140 approval and you are currently subject to the visa number retrogression); otherwise you may go with the EAD. After you get another 3 years H extension, you do not have to renew your EAD year by year at least 3 times/years. Your I485 should be adjudicated within another three years you purchased from your H-1B extension. Isn’t it worth of doing this if you will have nothing to worry about your immigration matters but just wait for the GC results? As for whether the post 6 years H-1B is still valid after your I485 is denied, it should automatically become invalid ( same as the EAD) because the post 6 years H-1B is based on the pending LC or immigration petition. If there is no LC and immigration petition any more, how can the post 6 years H-1B exist? If one argues the I-94 has not expired, that is just like the D/S on the F1 I94. The F-1 may not fall into the unlawful presence but s/he does be out of status if s/he has violated her F Reg.
After 6 Yrs of H1B, which is better EAD or H1B extension?
- Thread starter hr0803
- Start date
The post 6 years H-1B is based on the pending LC or immigration petition. The LC and immigration petition is for filing I485. After I485 is denied, you claim you still can stay in the post 6 years H-1B without impact. Try to go the court for the support instead of spreading your own opinion. You like Matthew Oh. You may read his article once again. Do you want to argue with him?
TheRealCanadian
Volunteer Moderator
compiler said:
As I've continually stated to you, an I-485 denial does NOT automatically invalidate the LC or the I-140. Why would it? If I withdraw my I-485 and opt for Consular Processing, that doesn't mean I need to start at the LC stage all over again.
And unitednations is absolutely correct. You CANNOT accmulate illegal presence unless you have overstayed an I-94 or some other written notice from USCIS telling you that you are out of status. If you have a valid I-94 for your 7th year H, then you remain in legal status unless it is revoked by USCIS in writing, or the I-94 expires.
But again, since the 7th year H is not based on the I-485 in any way, shape or form then there is no reason why it would be denied if the I-485 alone is denied.
It is basically a personal choice between howmuch one can obey stricktly the law or take advantage of all possible practical provissions in the immigration system(may be we can call loophole). Once 485 denied, as per UN, one can stay as much as the expiry of I-94 based on the extented H1 beyond 6 years, though it is a unauthoized stay, as we have not heard a story of deportation yet. However, once some kind of border protection bill passed, if they enforce stright criminal charge based on the immigration violation, then it will be disaster. Also, one can not change employers during that unauthorized stay. So, it is ones personal choice in taking the risk.
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TheRealCanadian
Volunteer Moderator
can_card said:
I get the feeling that I am screaming in a vaccuum here. The 7th year H-1 will remain valid so long as the LC and I-140 remain active. The status of the I-485 is completely irrelevant.
How many times do I have to repeat myself?
There is no experience on this issue at all. Why don’t you try digging for a case that the USCIS permits one stay in his post 6 years H after his I485 has been denied? It is unnecessary to talk about filing another I485 because it is beyond the scope. The USCIS and court will not support your opinion because it does not accord with what the lawmaker permits post 6 years H extension. I believe the Matthew Oh will not change his answer on this issue. Neither do most of experienced legal professionals. It is just your opinion but does not make sense. If someone feels he can keep working and stay in his post 6 years H after his I485 has been denied, it is just his feeling. Do not be misled by the young chicken.unitednations said:
TheRealCanadian
Volunteer Moderator
compiler said:
I would sugges that you follow your own advice and read what Section 106 of the AC21 statute actually says. It clearly indicates that 7th year H extensions are predicated on 365 days elapsing since the LC (106 (a) (1)) or I-140 (106 (a) (2)) filing.
TheRealCanadian said:I get the feeling that I am screaming in a vaccuum here. The 7th year H-1 will remain valid so long as the LC and I-140 remain active. The status of the I-485 is completely irrelevant.
How many times do I have to repeat myself?
You are partially right. Though h1b extention granted based on LC or 140 (not on 485), the purpose is to maintain non-immigrant status till one could able to file 485 whenever visa number available to him/her. In order to file 485, one must be in non-immgrant status at the time of filing. Thatswhy uscis giving h1b extension, not for any other reason. Once 485 is denied (not volentary withdrawl for a counslar processingl) for some reason by USCIS, there is no ground/authorization for one is to stay in USA. As you said, if any one has a valid approved I-140, they can very well leave USA by withdrawing 485 and apply CP at foreign post.
GreenCardVirus
Registered Users (C)
Murthy
Question: I am on my 7th-year H1B extension and the labor based on that extension was denied. What is my legal status now? Am I eligible to stay until the end of my 7th-year H1B approval?
Answer: Yes, the USCIS position so far is that the person"s previously-approved H1B petition remains valid until it expires. However, in order to obtain future extensions, the safest route would be to try and file ASAP a new LC/PERM application, then depart the U.S. for a few months, return, and file the H1B extension to recapture the time spent abroad. Hopefully, that is sufficient to obtain the 8th-year H1B extension, instead of having to give it all up and go back home for one full year or longer with the current cap problems and delays. Jan-30-2006.
Question: I am on my 7th-year H1B extension and the labor based on that extension was denied. What is my legal status now? Am I eligible to stay until the end of my 7th-year H1B approval?
Answer: Yes, the USCIS position so far is that the person"s previously-approved H1B petition remains valid until it expires. However, in order to obtain future extensions, the safest route would be to try and file ASAP a new LC/PERM application, then depart the U.S. for a few months, return, and file the H1B extension to recapture the time spent abroad. Hopefully, that is sufficient to obtain the 8th-year H1B extension, instead of having to give it all up and go back home for one full year or longer with the current cap problems and delays. Jan-30-2006.
Dude, I really do not know what you are talking about. Are you talking about the eligibility of filing the 7th years H-1B? The problem here is your I485 has been dead but you still want to take advantage of the 7th year H-1B benefits which has already allowed you to see the results of your I485. You just prove you are very young, just like another one who said “I like Matthew Oh more then any other attorney.” But, on the other hand, he just disagreed with what he read.TheRealCanadian said:
TheRealCanadian
Volunteer Moderator
can_card said:
That's your opinion. Unfortunately, the law is utterly silent on this matter, and in fact 7th year H1Bs can be granted to people who NEVER file an I-485 at all, but instead pursue consular processing. The statutory language is there to allow H holders to maintian valid non-immigrant status based on a pending LC or I-140 until permanent residency is achieved.
Again, the language is silent as to an I-485 filing. If your contention was true, then a 7th year H would not be available to aliens who had already filed an I-485. This is not the case.
You seem to be making up reasons to justify your assertion, and your reasons for 7th year Hs are not supported by statute, regulation or memorandum.
compiler said:
Amazing. I quote you section, chapter and verse of the relevant statutory language, you have no idea what I'm referring to, and then you accuse me of not knowing what I'm talking about? Priceless.
If you took the time to actually read the law, you'll note that the purpose of 7th year Hs has nothing to do with I-485s at all, which is why eligiblity for a 7th year H does NOT depend on an I-485.
TheRealCanadian said:
You have answered it. H1B extension was granted till one gets permanent residencey. I agree. Also I agree that USCIS do not care whether one has filed 485 or not. Approval of 485 is the terminal step in achiving the PR, if he is in USA. If 485 is denied, one cannot appeal it, unless it was denied due to probelem in I-140. Therefore, one has no right to stay in USA, if hie is staying more than 6 years, if 485 was denied and cannot able to appeal. The H1B is invalid as he cannot achive PR as the extension was given only for to maintain non-immigrant status till he achive PR. Once the final scope/goal is lost, what is the point is having subsidary benifit? Attorney Oh very clearly explained. I have marked in red.
I have asked 3 attorneys before I give up H1B. All are having same openion.
Question to Unitednations:
I am still on h1-B. My case is an AC-21 case in which my I-140 was withdrawn by my previous employer. Filed MOTIC the case got reopened. My H1 is expiring in November this year. After seeing your response on this thread I am scared switch to EAD / Advance Parole after NOV 2006. My present Employer might not pay for the H1 extension or he may ask me to switch on EAD after the h1 expiry ( since I have an EAD ( although I never used it ).
Please advice me what should I do?
Thanks
I am still on h1-B. My case is an AC-21 case in which my I-140 was withdrawn by my previous employer. Filed MOTIC the case got reopened. My H1 is expiring in November this year. After seeing your response on this thread I am scared switch to EAD / Advance Parole after NOV 2006. My present Employer might not pay for the H1 extension or he may ask me to switch on EAD after the h1 expiry ( since I have an EAD ( although I never used it ).
Please advice me what should I do?
Thanks
GreenCardVirus
Registered Users (C)
IL_LABOR said:
Even though your question is addressed to UN, hope I can take the liberty to answer.
You did not tell if you 6 yrs on H1 is complete? If it did or it will in November, you have no basis for 7th year extension, since 140 is withdrawn. In that case EAD is your only option.
Since the 140 was withdrawn and your 485 case was reopened, what is the worst that can happen now?
485 will be denied if
1. If there is any out of status period of over 180 days before
2. Health/Criminal problems
3. Security Clearance
4. If the labor based on which you filed 140/485 is reused for someone else and that person after filing 140/485 is able to get GC before you, then the law is not clear whether you get a GC or not
5. Any problems with 140, like USCIS finding fraud etc.
Thanks for your reply. Just spoke to my company's immigration attorney . According to him if I had an approved I-140 and I-485 has been filed and my priority date is not current then I should be eligible for 3 year extension. Can anyone on this form please confirm... Ginnu , UN?
Thanks!
Thanks!
GreenCardVirus
Registered Users (C)
IL_LABOR said:
Beyond 6 years, you get only extension if 140 is approved and not revoked/withdrawn. Doesnt matter if you are on H1 currently.
I was in a similar position. I moved using AC21 and EAD. After my former employer revoked my 140, I wanted to try for H1 transfer because not many days passed after I changed jobs and when 140 was revoked. There was nothing I could do because 140 was revoked, there is no basis for extension.
dyingforgc
Registered Users (C)
IL_labor, why are not eligible for 7th year extension based on your pending labor? I couldn't understand. unless I overread something in your post?GreenCardVirus said:
TheRealCanadian
Volunteer Moderator
GreenCardVirus said:
Wether the I-140 is approved or not is irrelevant. So long as the LC has been pending for over 365 days and the I-140 hasn't been withdrawn or revoked, you can get a 7th year H.
inconsistencies
UnitedNations - I have looked at the 'inconsistencies' and they are a result of the govt agencies interpreting things differently over time. You should know that things are not always clear in black and white - and so interpretations change. Murthy has indicated on several occasions that what the USCIS and DOL said earlier were changed because of a MEMO just relaesed.
UnitedNations - I have looked at the 'inconsistencies' and they are a result of the govt agencies interpreting things differently over time. You should know that things are not always clear in black and white - and so interpretations change. Murthy has indicated on several occasions that what the USCIS and DOL said earlier were changed because of a MEMO just relaesed.
If I had time to read the law, I still wouldn’t see the law permits the post 6 years H-1B continuous if one’s I-485 has been denied. Neither is it the lawmaker’s intention. Do you know why the lawmaker permits the post 6 years H-1B? Do you understand the post 6 years H-1B is for the completion of one’s I-485? Once it is denied (the CIS usually orders you leaving immediately), your post 6 years H ends consequently. You thought you can play with the immigration system as you like, that keeps you stay after your I-485 has been denied. You had better suck out the snot before making your twang.TheRealCanadian said:That's your opinion. Unfortunately, the law is utterly silent on this matter, and in fact 7th year H1Bs can be granted to people who NEVER file an I-485 at all, but instead pursue consular processing. The statutory language is there to allow H holders to maintian valid non-immigrant status based on a pending LC or I-140 until permanent residency is achieved.
Again, the language is silent as to an I-485 filing. If your contention was true, then a 7th year H would not be available to aliens who had already filed an I-485. This is not the case.
You seem to be making up reasons to justify your assertion, and your reasons for 7th year Hs are not supported by statute, regulation or memorandum.
Amazing. I quote you section, chapter and verse of the relevant statutory language, you have no idea what I'm referring to, and then you accuse me of not knowing what I'm talking about? Priceless.
If you took the time to actually read the law, you'll note that the purpose of 7th year Hs has nothing to do with I-485s at all, which is why eligiblity for a 7th year H does NOT depend on an I-485.