Could one file I-185 while my visa extension is still pending

C

coralsea

New Member
Hi,

I am currently working with H1B1 (Similar to TN, does not allow immigration intent), my I-94 had expired two months ago, and the extension petition is still pending. According to my lawyer, USCIS is currently adjudicating my case. My question is, could I file I-485 right now? Will this affect my pending H1B1 extension? Thanks!
 
Since you are in an employment-based category INA 245(k) applies, which means you can file I-485 as long as you have not been out of status or working illegally for more than 180 days since your most recent admission. Assuming you maintained status until your I-94 expired two months ago, your out of status days is less than 180 days, even if your extension of stay is denied. So you are eligible to file I-485, and it does not depend on your extension of stay being approved. Out of status days do not accrue after I-485 is filed, but illegal work days can still count after I-485 is filed, so make sure to stop working if your extension is denied. See 7 USCIS-PM B.8(E) for more details.

It's hard to say if it will affect your extension of stay.
 
Thanks for your detailed answer! My main concern is because H1B1 is not a dual intent visa, it is similar to TN Visa. I am not sure if USCIS will deny my pending extension if I file my I-485 now.
 
As you realize, and as your lawyer and newacct point out, you are allowed to file an I-485. That is never in question if you are present in US and already working for your sponsor.

But, like TN, filing an I-485, seriously jeopardizes -- if they make the connection with with your H1B1 -- any renewal or re-entry on your status, which could put you out of work, or out of the country, or both, until your EAD/AP is issued.

If you can stomach that risk, the file. If not, wait until your renewal is approved. Chile/Singapore are not under any numerical restriction when it comes to EB category,
 
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