H1b applying for Family based GC

S

Samtoctzn

New Member
Hello,

I am in the US on a h1b visa which will expire in September 2021.
I recently married a citizen in February 2021 and my spouse has filed for my i130 in March, which is being processed.
Unfortunately due to certain tax issues we will not be able to file the i864 till end of April or mid May. So I will not be able to file my i485/i765 till then.

My queries are:
1. How many days can I legally stay in the US after my H1b expires?
2. If I file for the i485/i765 by May and get a I797 by end of May, but my H1b visa expires in September before I get my EAD, will I be able to continue staying in the US lawfully till I get my EAD.
3. With covid effecting processing times, what is the estimated wait times for EAD approvals?
4. What are some potential issues I need to be aware of in terms of what is considers a legal stay or any steps I can take to avoid them.

Thank you for the response in advance.
Sam
 
2. Once your i485 is properly filed and accepted you are in authorized stay. So you don’t have to worry about unlawful presence after your H1B expires.
3. EADs have often been taking 6 months or more lately to get processed. You will be able to get more up to date estimates for when you apply here https://egov.uscis.gov/processing-times/
You would be advised to apply for i131/advance parole at the the same time as i765, as once your H1B is no longer valid, you’ll need it if you want to travel out the US without abandoning the AOS application. Usually EAD/AP gets issued as one “combo card”.
 
Thank you for the info @SusieQQQ

I have l a follow up question, If I get a 797 but also get an rfe for my i485(assuming they need more info) is it still considered accepted or would an rfe cause a problem to my authorized stay?
 
RFE will not interfere with the authorized stay once a package has been accepted. Bear in mind an incomplete application will be rejected at lockbox (package will not be accepted). RFE typically would only come some months down the line once someone is actually looking at the file, and will likely delay your entire process.
 
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