H1B is expiring - Please help

U

ubhavsar

Registered Users (C)
I have applied for I-485 for me , wife and son.
I got EAD for me and my wife . Ours H1B and H4B are expiring in August. I am going to send request for renewal of EAD for me and my wife to stay in status. But what should i need to do for my son. He is just 5 yrs old. What should i need to do to stay in status. Should i need to apply for H4B extention ? Gurus please help.
My RD : aug 2002
FP : sep 2002
EAD : sep 2002
Thanks in advance.
 
no need to worry

once a person's i485 application is received by BCIS, they are in legal status indefinitely, until the i485 is adjudicated. this status, called "pending adjustment" is neither immigrant nor nonimmigrant, and is parallel to whatever nonimmigrant status that you may have. so in your case, you have a nonimmigrant H1B status as well, which allows you to work. and EAD approved on the basis of your pending adjustment ALSO allows you to work, and you have a choice.

once your H1 expires, you and your wife and son remain in legal status on the basis of pending adjustment. however, in order to work, you must either have an approved EAD in hand, or should have at least filed an H1B extention.

remember, if you decide to switch to EAD after your H1 expires, you are no longer in nonimmigrant status, and cannot use the H1 visa stamp in your passport to travel. then you and your family must have Advance Paroles (AP) in case you need to travel out of and return to the u.s.

hope this clears things up for you.
 
ubhavsar,

for u family especially ur son, the receipts of I-485 application is the legal docs to stay in the states.

yager
 
Hello Porkchop,

I have a question.
My H1 is expiring at end of this month. Per lawyer's direction, I have applied for EAD and AP instead of 7th year H1 extention in 1st week of April. You have mentioned that one needs to have an approved EAD to work legally. Will I be in trouble if my H1 expires and EAD is not approved yet? FYI, I have applied for 485 in February and recieved the reciept notice.

Thanks.
 
guttchan

in one word: yes. since you have applied for EAD in the first week of april, there is no way that you can have an approved EAD by the end of this month when your H1 expires. so, you cannot continue employment legally.

you have just about enough time to have your employer apply for an H1 extention; get your employer to do that. my employer, too, applied for my extention only about two weeks before my H1 was going to expire, and i showed them the email of an outside lawyer to convince them that merely having a pending EAD application will not allow me to work legally.

i suggest you lose no time in getting your employer to apply for H1 extention, as you would still need to go through LCA (labor condition application) which can sometimes take a week or more. and in order to be legally employed without a gap, the RD of your H1 application should be on or before the expiry of your current H1. with an H1 renewal app pending, you don't have to wait for approval, and can continue working legally.

good luck!
 
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Pork Chop,

Thanks for the reply. Fortunately I got a clearance from Labor Departmartment that Labor Certificate is valid until March of 2005.
I did some research and from what I found, like what you have mentioned, best way is to apply for H1B extention before the expiration date so that I will be in legal status for working in U.S. From what I know, once I apply for extention, I can work legally until further decision is made by INS. Hopefully I will get the EAD approved before H1 extention is decided. Anyways, regardless of getting EAD approved or not best way is to go for H1B extention. One last question is shoud I apply for premium process for H1 Extention or should I just go through normal process and just wait for my EAD to be approved before H1?

Again I greatly appreciate your help.
 
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guttchan

as you yourself wrote, you can continue your employment legally as long as your H1 extention app has been received by BCIS. you do not have to wait for its approval, so there is no real need for premium processing, so you can save the extra $1000. H1 premium processing is helpful for new H1 application. however, if you/your employer (whoever is footing the bill) does not mind spending the extra bucks, you can go for premium if you like.

if i were you, i would continue working on H1, even if my EAD came through before H1 approval. the reason is that, in the very unlikely even of i485 being denied, there is always the H1 status to fall back on while one prepares to file an appeal or whatever. if one was working on EAD, one is completely out of status if i485 is denied. and if one's GC labor was filed over a year ago and i485 is pending, then H1 extentions are available beyond the normal 6-year limit.

as i said, i485 denials are rare, but the extra little bit of security never hurts.
 
Pork Chop,

Thanks for your reply again.
FYI, I have mentioned this issue to my lawyer. He has told me that he is 100% sure that applying EAD will make me in a legal status once the H1B expires.

For the sake of my safety, I have asked him to work on my H1 extension since it will do no harm. His response was kind of reluctant and before working on the H1 extension, he said he would review the law again. From the advice of Pork Chop and information that I gathered elsewhere, I should be better of by having some kind of valid working visa to avoid out of status after H1 expires, but the lawyer insists it is not necessary. As soon as I find out his findings, I will update the result.
 
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guttchan, here's something that might help...

this was posted on Matthew Oh's excellent website (under "Breaking News"):


04/03/03: Delay of EAD Processing and BCIS Policy

* People who have applied for EAD renewal must have noticed that they typically received a RFE asking to submit the government issued photo IDs. This plus other factors have caused a substantial delay in processing of EADs lately.

* According to the AILA, it will be the BCIS policy not to back date the EAD validity date when they issue a renewal EAD card. This policy presents a serious problem for a large number of aliens who are working on EAD, such as the family-based I-485 filers, and the employment-based EB-485 filers who are not working on employment-visa status such as H, L, E, O, TN, etc. Legally, should the Service Center fail to issue a new card within 90 days from the date of EAD application filing, people are allowed to go the local field offices for issuance of Interim EAD cards. However, the reality does not always work like that. Some district offices take time to process such interim EAD cards.

* Since the gap between the old and new cards creates a period of lack of employment authorization, any employment during this period can be considered an unauthorized employment. Such violation of immigration laws pending I-485 can make such alien ineligible for adjustment of status to a lawful permanent resident.

* It is thus imperative that people start filing EAD renewal a way in advance, something like four (4) months, so that they do not face such risk in the green card track.
 
I couldn't agree more on this with Pork Chap. It shows the lack of knowledge of your attorney. Please apply for your H1B extention before it is too late or stop working when you do not have either H1B or EAD. Choice is clearly yours.

Thank Pork Chop for the excellant advise and information that he has given you. No one can tell you better than this.

Good Luck !
 
Hello Everyone.

Follow-up to my case.
It took 2 different law firms opinion, a congressional disctricts assitance to contact Neberaska, a chat from INS officer to finally convince my Lawyer that I need to file for my H1B extension in order for me to work legally after expiration date. Luckily I was able to send the I-129 H1B application on Friday just before my H1 expired on Monday.

Should I get something in writing from Lawyer stating
that I am legally able to work in USA because I filed for H1 extension before H1 and I-94 expired? The only document I have is the copy of my I-129 application. Is reciept notice of I-129 sufficient if I recieve one?

Thanks to everyone for assisting me to get this issue close.
 
wow, took some doing on your part, didn't it?

... but the important thing is, in the end, your i129 was filed. you will not receive the receipt notice of the i129, your employer/lawyer will. once that comes in, just get them to give you the LIN#, and/or possibly, a photocopy of the receipt notice. there is no document really that you need to "prove your status" to continue working. just the fact that an i129 petition filed on your behalf is pending is enough.
 
I have a doubt.... Hi Pork and guttchan,

To prove that your H1B renewal application is made on or before the expiration of your present H1B, which day they cosider ? Is it post marked date that you have dispatched the renewal application or the date received by BCIS ? If it is later then in the above case it is touch and go situation. What if it is received by BCIS on tuesday instead of monday ? I am only being a devil's advocate ! I only hope and wish everything should go well.

A comment on your attorney ! Did he by any chance got his law degree through distant education ?

Regards,
 
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I believe INS accepts mail on saturdays and one hopes that even a lawyer who got a degree through distance education would have the sense to overnight the documents and not just drop them in the US mail bin on the corner. Usually the INS receipt has a receipt date and a notice date when the check is processed for collection. If guttchan is lucky, his receipt date will atleast be dated saturday or monday. Clearly the lawyer is at some risk here from a malpractice claim!!
 
Hi Sakrityayan,

My comment on the lawyer was in the context of the following post by guttchan. Not on how the application was mailed.


Originally posted by guttchan
Pork Chop,

Thanks for your reply again.
FYI, I have mentioned this issue to my lawyer. He has told me that he is 100% sure that applying EAD will make me in a legal status once the H1B expires.

For the sake of my safety, I have asked him to work on my H1 extension since it will do no harm. His response was kind of reluctant and before working on the H1 extension, he said he would review the law again. From the advice of Pork Chop and information that I gathered elsewhere, I should be better of by having some kind of valid working visa to avoid out of status after H1 expires, but the lawyer insists it is not necessary. As soon as I find out his findings, I will update the result.
Click to expand...
 
guttchan...

the operative phrase that "the BCIS must have received your i129 extension app on or before the expiry of your current H1" points to the RD of your app. i recall reading that when a mail packet is received by INS/BCIS, it is immediately stamped with the date of receipt. then in a few days when it is opened and entered into their system, an official notice is generated. on that notice, the Receipt Date is the date of the stamp they originally put in, the Notice Date is the date when the receipt notice itself is generated, and its LIN (or EAC/WAC etc.) number is system-generated based on the ND.

so when you/your employer/lawyer receive your i797 receipt notice, check its RD. if it is the monday of your H1 expiry, you are completely okay. earlier, the INS would not have minded if it was a day or two late, but now, who can say? i do feel that they are not sticklers to the degree enough to argue that, by the time they received your app, you H1 was already past its expiration, so an extension of the same cannot be entertained.

get your iEAD as soon as you can, and in the worst case scenario, take an unpaid leave of absence.
 
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