Complicated Situation ????

B

BondGC

Registered Users (C)
One of my friend is in Complicated situation ... help please ?? any one in similar situation ?

Here is the current situation:

1. Labor substitute, applied 485 & 140 concurrent file on September 5th,
Did not apply for h1 7th year extension.

2. He sent old photo style (side photos) to INS, he didn't know about the photo style changes. Would they consider ?? if not when they will send RFE ?

3. H1-B is going to expire in 10 days.

He got EAC number for EAD and 485, If he does n't get EAD approval in 10 days. what is his status ?

can he stay or work legally on EAD eac number ? he can't get i-ead because
its not completed 90 days.

any ideas in this situation ???????

Thanks in Advance.
 
Is your friend's with the same company? If yes, then he needs H1 extension....may be premium processing will help (not sure how long this takes nowadays)....If no, then he needs a employer who can sponsor H1B for him (before his previous H1B expires)....

If I-140 is not yet cleared he needs to stick with the current employer. Hope this helps.
 
If the H expires, his status will be "in adjustment of status" and he's allowed to be in the US.

However, to work he will need a valid EAD. In theory, he might get this soon but these can often take 90+ days which is why most people should apply for / renew this at least 100 days before it will be needed. The EAC number is used for tracking purposes only and is useless as far as being allowed to work goes.

As you point out, after 90 days of the EAD pending, you can obtain an interim EAD (iEAD) locally but not if there is an RFE on the underlying case. It's possible the photos could generate an RFE -- I'm not sure.

He might be best off going for the 7th year extension if he can get that quickly (maybe there is a premium processing option for this?) otherwise he can't work (and can't collect UI if applicable) until he has an EAD in hand.

Who's his lawyer? Applying for the I-140/I-485/EAD 1.5 months before the H is going to expire (and not extending the H) was a bad idea...

Note: I'm assuming that your friend is currently working for the H sponsoring company -- otherwise he's been out of status up to the time that the GC was filed.

And, obviously, for the GC to proceed he needs to meet all necessary conditions (not switching companies before I-140 is approved, working in a job similar to the original one etc.).

ETA
 
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Hi

Due to the AC21 rule, your friend can file 7th year extension (only if his labor got approved after it was pending 365 days or more as I-140 was not pending 365 days or more). He can file 7th year extension if he qualifies as above using regular processing or premium processing.
As for AC21, a person who has been previously in H1B status, can start working as soon as he receives the H1B filing receipt.
As far as status is concerned, he is in status as he filed his I-485. But to work he immediately needs to file his H1 and receive his H1B filing receipt. Then he can continue working with his employer until his H1 gets approved. Meanwhile if his EAD gets approved, then he can use it (again depends on the person, as his I-140 is still not approved)

Hope this helps
 
He is still working with h1 sponsoring compnay ...

but thier lawyer said that there is less chance to get 7th year extension with substitute labor .. that's why he did not try for h1 ext.

Thank you for your time and replies.
 
Hi BondGC
Yesterday itself , my friend sent me a link for a memo addressing H1B 7th year extensions. In it, it is clearly stated that if you are using a substituted labor for 7th year extensions, the original filing date of the labor certification (the date on which it was applied to the first person and is not used and substituted to your friend) is taken into account, so if that labor date is approved after it has been pending for 365 days or more, then ur friend is safe.

Note: in my case, i used a labor substitution and my I-140 is approved, my company file dfor my H1B 7th year extension last month. waiting for the approval
 
Although he is eligible for H1b 7th year extension (based on the LC filing date), he needs to apply BEFORE the current one expires. As long as he sends the application (for the extension) in before the expiration date of the current one, I think he will be in status. A pending H1b application grants temporary status (unlike an application for EAD) until a decision is made on the application one way or another. At that point even if the application is rejected (hypothetically speaking, although there shouldn't be any reason for rejection), by then hopefully he will have gotten his EAD card and can start working on that.

Also, I don't believe spending the money for premium processing is required/beneficial for this case, since he is in status as soon as he applies and as long as a decision is not made. An expedited decision is not going to gain him anything (unless the H1b extension is filed for a different employer for whom he wants to start working right away which doesn't sound like its the case).

EAD is not an option at this point for him, since it will not arrive before the expiration of the current H1 (as per normal processing trends for EAD).

Bottom line - tell your friend to apply for the H1b 7th year extension through a competent lawyer RIGHT AWAY! That's his only hope for staying in status and working until his EAD is approved, as I see it.
 
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Hi herenow

You don't seem to study his case well.
He has already filed his I-485 and has received the receipt notice.
That means, that He is authorized to stay in USA until his application is adjudicated, no matter he has his H1B are not or no matter he works or not.

So the status problem will not arise at all in this case.
His only problem is about the work continuation and not status related
 
Explorer19 said:
Hi herenow

You don't seem to study his case well.
He has already filed his I-485 and has received the receipt notice.
That means, that He is authorized to stay in USA until his application is adjudicated, no matter he has his H1B are not or no matter he works or not.

So the status problem will not arise at all in this case.
His only problem is about the work continuation and not status related
Click to expand...

I stand corrected. But the question he asked was of status.
 
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herenow and Real Canadian,
I remember reading that posting on murthy.com when it first appeared. Anyway, the proof is in the pudding - or so they say. I used Labor Sub and filed I-140 a month before 6 years of H1 expired. 7th Year H1 extension was filed soon after that, but before the 6 years of H1 ran out. All those petitions have been approved.
 
MBMseekingGC said:
I remember reading that posting on murthy.com when it first appeared. Anyway, the proof is in the pudding
Click to expand...

Thanks for sharing your feedback. I learned something new about 7th year Hs through this thread.

My assumption was that 7th year portability applied only if alien's name was attached to the GC petition for more than 365 days; what appears to be the case is so long as the LC has been applied for more than 365 days in the past, an LC substitution beneficiary can avail him/herself of a 7th year H the day after the I-140 is filed.

I learn something new every day.
 
You are welcome, Real Canadian. By the way, you are doing an excellent job as moderator. Folks like you and United Nations are huge assets to this forum. Thanks for taking the time to share your knowledge with the rest of us.
 
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