Jim M and Gurus Help Neede!!

J

jarv

Registered Users (C)
My employer filed I140 EB3 with ND 08/05/02 at TSC (of course still pending). I have not filed the 485 concurrently because I was first collecting all the info required for it (birth certificates took long time to get it from my country). In the meantime my H1B expired on 12/01/02, and my employer filed the H1B (and H4 for my wife) extension on 10/07/02 at TSC (and guess what?) and still pending!, seems like they are just processing Aug02. Now I'm all ready to file I-485 for me and my wife, but in the form there is a question about your current status and EXPIRATION DATE. I know we are in status as long as the application is still pending and it was filed in timely manner for 240 days in my case and 180 days in the case of my wife; however I don't have the expiration date to include in the I485 application since the H1B/H4 applications are still pending.

I need to apply to the I485 before the 4/07/03 otherwise my wife can get in an out of status situation (I believe) even if the H1B/H4 application is not approved by that time.

My basic question is if I can apply to 485 now and which should be the answer to the status/expiration date question (Should I submit a copy of the receipt for the H1B/H4 cases, showing that it was file in timely manner) I don't want to say in the form valid until Dec01,02 since it may be understood as we are out-of-status, which I do know we are not. Or do I have to wait for the approval of the H1B/H4 case to apply for the 485.

:( Thanks a lot for any replies

jarv
 
jarv

I believe you can mention "COS pending H-1" and "COS pending H-4" respectively for you and your wife's forms where you need to fill out the current status and the expiration date. (COS= change of status). Also, be sure to attach the receipts as you mentioned for H-1/H-4 to prove that these were timely filed. Should'nt be a problem. (not a legal opinion....but you can check with others....however I already did as I was in similar boat). Also, I do not think you will be out of status as long as the H1/H4 are still pending (even if it is over 180 days....but do check with others).
Best wishes.
 
Jarv,

I pressume you are aware that if you do not get your H-1B extension before 04/17/03, you cannot work. Also if you file for your I-485, unless and untill your EAD is approved you cannot work. Hopefully you should get your approval.

Try calling the TSC and tell the IIO that your 240days is ending on 04/17/03, and see if you could conference your HR/employer to talk to a supervisor. This works sometimes in expiditing the case.
 
I was in the same position and my lawyer lost the H1 extension receipt - but we wrote the receipt number and extension of status next to that question on the 485. It was fine and accepted, got EAD and AP as well. this was at VSC. So this should not be a problem at all.

As for the issue of until when you can work, under the most recent AC21 rules, you can continue to work for until your H1 extension is adjudicated - earlier it used to be the earlier of 8 months and the approval date but that's no longer the case.
 
AC21 is for someone who has filed I-485 and loses their job, and goes to work for a different employer in the same capacity and salary or someone resigns from the current employer after 6 months of filing their I-485 to accept employment with another employer, which is in the same category and salary.

For H-1B extensions 240 days rule still stands good!
 
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