Some O1/EB1/CP questions (6yr-H1B running out..)

D

duality

Registered Users (C)
Hi,

my H1B is about to expire in a couple of months. I have some critical
questions, would appreciate any useful information and suggestions in
this regard.

1) My company is applying for an O1 visa on my behalf (to the Nebraska
   Service center). In this regard,

   a) How long do O1 visas take typically take to be processed (and in
      particular, any recent approvals at NSC or other centers? If so, could
      you please post or mail the information on them).

   b) Is it legal to stay in the country waiting for the adjudication of
      the O1 visa after my H1B expires (i.e. past the date on I-94)? My
      lawyer mentioned that it is OK, as long as I do not work. But,
      someone mentioned on this forum that it is not legal stay beyond
      the expiration of H1B.

2) I have an I-140 approved (RIR/EB2 by NSC) on which we had requested consular
   processing and I am waiting for "Packet 3" to arrive from NSC. I am
   thinking of filing a brand-new EB1 (self petition in the extra ordinary
   ability category) petition, just in case everything else goes wrong.

   Is filing a new I-140 permitted while a previous one is already approved?

3) Is it possible to request both adjustment of status and consular processing
   on the EB1 petition of (2) above?

4) Since there is some chance that I may be India while waiting for my
   EB2/CP interview date, how does being physically in India affect (2) and
   (3)?

Thanks for the information.

best regards,
mvr
mvr3@excite.com
 
No Title

Here is the stuff that I know:

a) How long do O1 visas take typically take to be processed (and in particular, any recent approvals at NSC or other centers? If so, could you please post or mail the information on them).

> Impossible to predict. This is not a petition that a large number of people apply for. If you are qualified for EB1, you should be able to get an approval.

b) Is it legal to stay in the country waiting for the adjudication of the O1 visa after my H1B expires (i.e. past the date on I-94)? My lawyer mentioned that it is OK, as long as I do not work. But,
someone mentioned on this forum that it is not legal stay beyond the expiration of H1B.

> Yes, if your O-1 application is applied before your H-1 expires and you get approved finally. But, if your O-1 application gets denied finally, you might become out of status. The question that I cannot answer is: what is the date when you become out of status, in case your O-1 gets denied? Do you retro-actively lose your status? Talk
to your lawyer.

2) I have an I-140 approved (RIR/EB2 by NSC) on which we had requested consular processing and I am waiting for "Packet 3" to arrive from NSC. I am thinking of filing a brand-new EB1 (self petition in the extra ordinary ability category) petition, just in case everything else goes wrong.

Is filing a new I-140 permitted while a previous one is already approved?

> Yes. I filed a company sponsored EB1-OR and a self petitioned EB1-EA a few weeks apart in VSC and both got approved in the last few weeks.

3) Is it possible to request both adjustment of status and consular processing on the EB1 petition of (2) above?

> Request CP. In order to go for AOS, you just need to file an I-485
instead of sending Packet III to consulate.

4) Since there is some chance that I may be India while waiting for my EB2/CP interview date, how does being physically in India affect (2) and (3)?

> Once you go back to India, you cant do AOS any more. Once your 140 gets approved, you will be sent Pkt III etc. Note that your company should still be willing to hire you, if you plan to use your EB2 application. If you want to use your EB1-EA for CP, you need to prove (a) that you are going to work in the same research area in the US, (b) that you will not be a public charge i.e., you have a job.

Dont rely on free advice from other netizens. Always get a second opinion from a competent lawyer.
 
No Title

Hi kr9,

thanks for a very informative reply. Based on it, I will plan things
conservatively. While we are at it, let me ask another question. My lawyer (and her colleagues) are of the opinion that the new H1 law
provides extensions to the 6 yr time limit only for the AOS cases and DEFINITELY not for CP cases. Are you aware of a different opinion and/or cases where people have been tryin to attempt this sort of an extension?

Thanks again.

mvr
mvr3@excite.com
 
No Title

I dont think there is any difference between CP and AOS in the context that you mention. If you are in the US and file I-485 you are automatically an AOS case, even if your 140 has been approved for CP.
I did see some one report on this disc. board (different forum) that they got their H-1 approved beyond the 6 year limit due to 2045. But, talk to a lawyer and make sure that you are eligible to do this (there are several restrictions) before you apply.
 
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