H1B to family based permanent residency (I-130, I-485)

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Vibrations

New Member
I am seeking some advice about my immigration situation.

Some Background: I am currently on an H1B from my employer. My employer started my green card application process about a year or two ago. I have been told I am in the final phases of getting the labor certificate; the I-485 has not been filed yet. My H1B has been extended twice during this process, for 6 months at a time; it might be important to note I have been working in the US for more than 6 years (first L1, then H1B). The most recent extension was filled in August 2006 and although I have not seen the approval notice yet, I believe it is for an additional 6 months. I have not updated my passport stamp to reflect this extension as I have not had a chance to travel to my home country. I have recently married a US citizen and would like to file for a family based permanent residency; and discontinue the employment based process.

My questions:

1. Since my current I-94 reflects the H1B expiration date before the extension was filed (i.e. August 2006), do I need to get a new I-94 before filing for permanent residency, i.e. leave the country, stamp my passport and come back with a new I-94?
2. Should I apply for work authorization or keep extending the H1B? It is even possible to extend the H1B in my situation?
3. Do I need to file for travel authorization if I will be using my H1B which in the permanent residency process?
4. Does anyone know a good immigration lawyer in the Los Angeles / San Fernando Valley area? I would like someone to review my package before I file it.

Any advice will be GREATLY appreciated. Thank you!
 
1. Are you expecting to get the Notice of Action for your H-1B soon. If so, it might be better to wait for the I-94 off that before applying, to show you weren't out of status. You shouldn't be penalized for it either way, so if you want to file the AOS ASAP, then you should be fine. Perhaps a include the Notice of Action for the reciept of your H-1B extension with the application as evidence of your legal status.

2. Apply for EAD. I'm not sure if you can extend H-1B after you have applied for AOS. You probably can, but getting the EAD would be the simpler option (although the one that would cost you money).

3. You can travel on your H-1B as long as it is valid, however as you don't have a visa stamp you would be required to return to your home country and get one. In the amount of time it takes to wait for H-1B to be approved and do this, you could already have your green card.
 
Wow, that was quick, thank you! I should be getting my approved Notice of Action soon; I’ve asked my employer to send it. I guess I can just submit a copy of this document along with my now expired I-94. I will look into filing the EAD. Are there any risks associated with the EAD?
 
Sounds good.

As for the EAD, I don't think there are any risks associated with it, it's actually more flexible than the H-1B as you can work for anyone with it, so if you lose your job you could work for another employer. However I believe you won't be able to travel any more if you use the EAD, as it invalidates your H-1B. Its a bit of a grey area this, so it might be worth consulting a lawyer if you need your H-1B for travel.

Another issue with EAD is that often GC applications are being processed so fast, and EAD so slowly, that some are getting their GC before their EAD, and therefore their $180 spend on EAD is wasted. Personally I wouldn't risk this however.
 
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dr_lha said:
However I believe you won't be able to travel any more if you use the EAD, as it invalidates your H-1B. Its a bit of a grey area this, so it might be worth consulting a lawyer if you need your H-1B for travel.
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You're right.
But since you've never been out of status you could solve this by applying for advance parole as well (I-131).
 
Vibrations said:
My questions:

1. Since my current I-94 reflects the H1B expiration date before the extension was filed (i.e. August 2006), do I need to get a new I-94 before filing for permanent residency, i.e. leave the country, stamp my passport and come back with a new I-94?
2. Should I apply for work authorization or keep extending the H1B? It is even possible to extend the H1B in my situation?
3. Do I need to file for travel authorization if I will be using my H1B which in the permanent residency process?
4. Does anyone know a good immigration lawyer in the Los Angeles / San Fernando Valley area? I would like someone to review my package before I file it.

Any advice will be GREATLY appreciated. Thank you!
Click to expand...
1. Do you mean you filed extension after I94 has expired ? If so, your extension may not go through.. However, since you will apply for AOS with marriage to US citizen, AOS itself(marriage base) should not be a problem.

2. You are eligible to 7th year or beyond extension since your LC is more than 365 days old, but if you filed H1 after I-94 expiration, they will deny it.
You have to file extension in timely manner.
So, I recommend to get EAD just in case.

3. I recommend to get it for the same reason as #2.

As for validity of H1 discussed in the last 2 posts, H1 status gets void once he used EAD, but it invalidates H1 status only for the current stay. If he has valid H1 stamp and petition, and reenter the US with H1, he becomes H1 status again.
 
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GotPR? said:
1. Do you mean you filed extension after I94 has expired ? If so, your extension may not go through.. However, since you will apply for AOS with marriage to US citizen, AOS itself(marriage base) should not be a problem.

2. You are eligible to 7th year or beyond extension since your LC is more than 365 days old, but if you filed H1 after I-94 expiration, they will deny it.
You have to file extension in timely manner.
So, I recommend to get EAD just in case.

3. I recommend to get it for the same reason as #2.

As for validity of H1 discussed in the last 2 posts, H1 status gets void once he used EAD, but it invalidates H1 status only for the current stay. If he has valid H1 stamp and petition, and reenter the US with H1, he becomes H1 status again.
Click to expand...


Thanks. The H1B extension was filed before the I-94 expired. Pardon my ignorance, but what does “LC” stand for? Another Q, Should I have my employer continue to renew my H1B anyway, just in case there are delays in the process?
 
LC = Labor Certificate

It's your choice, but it's better to maintain non-immigrant status til you get PR approved.
 
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