H1B Expiring ---Urgent Need Advice

P

prvs2

New Member
Hi,

My Labour was filed in May 2003 and is pending approval at Atlanta DOL.

My H1B visa is expiring in March 2004, I have 77 days of vacation out of US and my attorney says we can apply for H1B extention under normal process as the current DOL approval duration is 12-13months. This would give us a chance to see if Labour comes through before H1.

My Question :-

1. What is my status when labour comes through and H1 is not yet approved...can I file 140 and 485 and wait for EAD to come? In this case will my case stand a chance to get 7thyear extention?

2. If Labour does not come through and H1 is declined what is my status and what implications does it have on my future H1? in this case when does my 365 time limit out of the country start?

3. If I file my H1 and leave the country on vacation to maintain my status and see how my labour and H1 turn out what options do I have for entering the US?
Any information you provide will be greatly appreciated.

4. Considering case 3 outcome is Labour approved H1 rejected........Can I file 485 and 140 and wait for EAD in India? Any directions to the timeline it takes for EAD in India.

Any information for the above will be greatly appreciated.

Thx:(
 
My Labor was filed in May 2003 and is pending approval at Atlanta DOL.
--------- if LC is not approved till May 2004 and you complete 6 years(count the 365 days from filing date and should have evidence that LC was filed before 365 days) you can extend H1 for 7th year
My H1B visa is expiring in March 2004, I have 77 days of vacation out of US and my attorney says we can apply for H1B extension under normal process as the current DOL approval duration is 12-13months. This would give us a chance to see if Labor comes through before H1.

My Question :-

1. What is my status when labor comes through and H1 is not yet approved...can I file 140 and 485 and wait for EAD to come?
----- if you file for H1 extension and H1 extension is still pending then you can file I-140, I-485, EAD with pending H1 extension receipt, if you have H1 extension filing receipt you can continue working on H1 status OR with EAD you can work ( better to maintain H1 till I-140 gets approved)
In this case will my case stand a chance to get 7thyear extension?
------ if you file I-140 or I-485 you can file 7th year H1 extension with I-140 or I-485 pending receipt
2. If Labor does not come through and H1 is declined what is my status and what implications does it have on my future H1?
------- LC denied no problem, but if H1 gets denied or you hit 6 years then you have to leave US as you would have completed 6 years on H1, if H1 extension filed and you are on H1 then LC gets denied you still can work till the validity of H1

in this case when does my 365 time limit out of the country start?
------ The day you depart US
3. If I file my H1 and leave the country on vacation to maintain my status and see how my labor and H1 turn out what options do I have for entering the US?
------ if after filing H1 extension you leave the US then if H1 extension is approved then get the H1 approval notice and can come back to US with getting new H1 Visa stamp
Any information you provide will be greatly appreciated.

4. Considering case 3 outcome is Labor approved H1 rejected........Can I file 485 and 140 and wait for EAD in India? Any directions to the timeline it takes for EAD in India.
--------- If H1 gets rejected you cannot file I-485 you need to be in status I IN USA with valid I-94 before you file I-485, I-485 cannot be filed when you are out of USA. If LC gets approved AND at that time you are IN US with H1B valid status then you can file I-140, I-485, EAD, AP and will need AP or H1 visa stamp to reenter US
 
485

I thought there was some rule 245-i or so which allows some time in case ( in this case) h-1 is rejected and you need some time to file 485/140/EAD/AP provided labor is approved. I am not sure though, but worth checking out with an attorney.

Also, you can go to India for 2-3 months ( and if LC is not adjudicated) you can apply for 7th year extension and come back to USA on H-1. ( based on LC pending for 1 year or more).
 
Just to be specific my queries....

My Labor was filed in May 2003 and is pending approval at Atlanta DOL.
--------- if LC is not approved till May 2004 and you complete 6 years(count the 365 days from filing date and should have evidence that LC was filed before 365 days) you can extend H1 for 7th year
**** To be specific my 6yrs would complete in March 2004 where as my 365 after LC would complete in May 2004 ...so would this hold true.

My H1B visa is expiring in March 2004, I have 77 days of vacation out of US and my attorney says we can apply for H1B extension under normal process as the current DOL approval duration is 12-13months. This would give us a chance to see if Labor comes through before H1.

My Question :-

1. What is my status when labor comes through and H1 is not yet approved...can I file 140 and 485 and wait for EAD to come?
----- if you file for H1 extension and H1 extension is still pending then you can file I-140, I-485, EAD with pending H1 extension receipt, if you have H1 extension filing receipt you can continue working on H1 status OR with EAD you can work ( better to maintain H1 till I-140 gets approved)
In this case will my case stand a chance to get 7thyear extension?
------ if you file I-140 or I-485 you can file 7th year H1 extension with I-140 or I-485 pending receipt

4. Considering case 3 outcome is Labor approved H1 rejected........Can I file 485 and 140 and wait for EAD in India? Any directions to the timeline it takes for EAD in India.
--------- If H1 gets rejected you cannot file I-485 you need to be in status I IN USA with valid I-94 before you file I-485, I-485 cannot be filed when you are out of USA. If LC gets approved AND at that time you are IN US with H1B valid status then you can file I-140, I-485, EAD, AP and will need AP or H1 visa stamp to reenter US
** what are the conditions for filing of I-140& 485 by future employers?

Thx
 
** what are the conditions for filing of I-140& 485 by future employers?
------- you need to be on valid status in US to file I-485 and I-140, I-140 filing does not give you status to remain in US it is I-485 filing that gives you AOS pending status. I-140 filing status gives you the chance to extend H1 for th year if you get I-485 filing reciept before H1 expires and your H1 extension reaches USCIS before I-94 expiry date

I-140 could be filed if one is not in US like if case is EB1 in Arts or does not need LC

your situation is that you are on H1B and your H1b will expire before your LC is pending more than 365 days from filing date or RD of SWA or SESA if LC is not approved before your H1 expire and I dont see any option.

if LC is not pending more than 365 days you cannot apply for H1 extension

pachya: prvs2 is NOT qualified for 245(i) as his LC was not filed before 31 April 2001
 
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