I140/I485 denied and H1B expired – HELP!

P

poli13

New Member
Hi there,

I was wondering if anyone has any advice for my situation. These are the facts:

1. LC filed under EB2 on Nov 3, 2006 and received approval on Nov 7, 2006
2. I140 filed concurrently with I485 on Feb 4, 2007
3. EDA received on Apr 25, 2007 and good through Apr 20, 2008
4. H1B visa expired on May 4, 2007; lawyer advised not to renew H1B since I140 is a "sure thing". On top of that I don't know if I could've renewed it anyhow, since I've been in the US since 2000 (Sep 28, 2000 – Jul 4, 2001 on L1A; Aug 1, 2001 - May 4, 2007 on H1B)
5. I140/I485 denied on Aug 16, 2007 (without getting any RFE prior to denial)

I've seen couple of lawyers since the denial and each one has different avenues:

A. Appeal to buy time – but appeal will be denied because of the tactical mistakes made in my LC; then look for a different type of visa – i.e. J1, but I don’t know if this will take me to a green card.

B. Appeal to buy time - but will get denied since my LC was too screwed up, AND hope that a negative answer to my appeal won't arrive before Nov 3, 2007; on Nov 4, 2007 file for H1B extension (cause it will be one year since my LC was filed), premium process the H1B, and start with a new correct LC -> I140.

My present lawyer who prepared my applications wants to either appeal the decision or file a motion to reopen, but he doesn't know for sure which one is better; he is hoping to find a flaw in both reasons for denial and get the decision reversed. In fact he doesn't have a clue about other options if the appeal gets denied; he wants to put me on a TN visa, but that will mean the end of my emigration process… Anyhow, he was sure to wish me good luck!!!

I like approach B, but I’m skeptical about the H1B renewal. Will I be eligible for a visa extension in November? Will the fact that my I140 was denied COMBINED with the fact that presently I don’t have a visa affect negatively my H1B petition? I know that I have 180 days from Aug 16, 2007 before starting accruing negative days that forbid me from coming back to the states.

Does anyone else see a better approach? Please advise.
Thank you!
 
First and foremost thing is that in this situation you can't work since your EAD is not valid and H1B expired.
So don't work.
Filing MTR and Appeal (Both can be filed at the same time) is a good idea.
As soon as appeal and MTR goes in they can review the decision and chane it based on the documentation submitted (if you have a strong case).
SInce it looks like you thing lawyer messed up the LC so they are going to send it to appeal. As soon as you file appeal they are going to send you the receipt. On based on the receipt you can apply for H1-B extension.

But I am not sure since your H1b expired in May 2007 this becomes tricky.
May b somebody else can give some advice on this.
 
File your appeal fast, BTW - you cannot work on EAD anymore. Yes, appeal will possibly take longer than November 3, 2007 to adjudicate.
 
i think the best is to appeal and while you are waiting for the it, redo a LC. this may sound bad but if the case is not strong, you will have no choice. ask your lawyer if you can renew your EAD after you have appealed. i believe you may do so after receiving a receipt notice for the appeal. check on this one
 
Thank you all for your input. I know that my EAD is not valid anymore, and I’ll have to check with my lawyer to see if I can renew it once I received the receipt notice for appeal. But the big question is: can I extend my H1B in Nov? I don’t think that I have any chances with the appeal so I’ll have to start with a new LC. By the way, can I start an LC right now in my situation? Would that help me in any way? If I can’t extend my H1B in Nov, any LC that I would start right now would be useless, am I correct?
 
LC is for future employment, therefore it can be started ASAP (while the appeal is pending). Once that is approved, you can proceed with concurrent filing (from your timeline I understand that you are not from retrogressed countries).
 
Can someone clarify these for me please?
- if I file for a new LC that gets approved, does it mean that I can start working again for the company that is sponsoring me?
- if I file for a new LC that gets approved AND if my H1B application for extension (that I will file in Nov) gets denied, can I still use the new approved LC for anything else – file a new I140 for instance? The company that is sponsoring me will not keep my position open beyond Nov 2007. If I switch to a TN visa (I have Canadian citizenship) while a new I140 is pending, will my application be affected?
 
You cannot work on the approved labor certification. However, You can switch over to TN visa (anytime) to work. Please note that TN visa does not permit dual intent.
 
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