nsaleh
We were talking about "Substitute labor". Anyway, following are other options available.
a) AC 21, as amended by DOJ Authorization Act: If a labor certification application is pending or I-140 is pending and 365 (oops!) day has passed, he/she can apply for H-1B extension indefinitely in one-year increment until the decision is made one way or another. If approved, it continues until the green card is approved. If denied during any stage of the employment-based proceedings (LC or I-140 or I-485), then H-1B is terminated and no extension is available.
b) 245(K) Relief: Even with the exhaustion of the foregoing options, should he/she not be able to get the legal status extended, 245(k) provision should be used, which allows him/her to file I-140/I-485 concurrent filing inasmuch as the labor certification is approved in 6 months from the date of expiration of H-1B status. This law forgives out of status or unauthorized employment for less than 6 months for the purpose of filing I-485 application. He/she does not even have to pay $1,000 penalty which is required in 245(i) cases. Cabeat: Even if one is eligible for 245(k), he/she remains "illegal" until I-485 is filed and can be arrested and deported. Once I-485 is filed and receipted, he/she remains in status until I-485 is decided. This is analogous to the H-1B person who loses the job and after a short period files a new H-1B petition through a new petition. If "extraordinary circumstances" is established, the INS can approve such new petition, but until the decision is made, the H-1B alien remains an "illegal" alien and can be arrested and deported. Another example is 245(i). Once I-485 is filed and receipted using 245(i) relief, the alien remains in status, but until I-485 is actually filed, he/she can be arrested and deported.
c) Application for Change of Nonimmigrant Status: If one is not eligible for any one of the foregoing options, he/she should file I-539 applications timely to maintain the legal status until the labor certification is approved. Once labor certification is approved, one can file one-step I-140/I-485 quickly and continue the legal status and get the EAD for work. Under the law, the alien maintains a legal status pending a nonfrivolous application for change or extension of nonimmigrant status until it is decided.
