If GC is rejected, your H1-B extension is untenable!
kishore_s said:
Thanks poongunranar,
Thanks for your replay. In case if my gc get rejected, can I join my friends company and work till the validity of H1B or do I need to leave the contry as that H1B was extended to 8th year based on my pending GC ?
Thanks
Kishore
I am afraid, in that case you cannot work on the H1-B, which was based on the one-year increment provided to you on the basis of a pending adjustment of status procedure. (This could be either 365 elapsed days after filing of labor certification, or I-140, or whatever.) The relevant code (
21st Century Department of Justice Appropriations Authorization Act 2002)is here:
‘‘(a) EXEMPTION FROM LIMITATION.—The limitation contained in section 214(g)(4) of the Immigration and Nationality Act (8
U.S.C. 1184(g)(4)) with respect to the duration of authorized stay
shall not apply to any nonimmigrant alien previously issued a
visa or otherwise provided nonimmigrant status under section
101(a)(15)(H)(i)(b) of such Act (8 U.S.C.1101(a)(15)(H)(i)(b)), if 365
days or more have elapsed since the filing of any of the following:
‘‘(1) Any application for labor certification under section
212(a)(5)(A) of such Act (8 U.S.C. 1182(a)(5)(A)), in a case
in which certification is required or used by the alien to obtain
status under section 203(b) of such Act (8 U.S.C. 1153(b)).
‘‘(2) A petition described in section 204(b) of such Act
(3 U. S.C. 1154(b)) to accord the alien a status under section
203(b) of such Act.’’.
The law is not explicit on the validity of such an extended status of H1-B pursuant to a pending adjustment of status application, when "the underlying petition(labor, I-140, or I-485) is denied." It merely says that "under such and such circumstances only, until either a DENIAL or an APPROVAL of the petition, the Attorney General can extend the status. However, it is mum on what is the effect of a prior extended status, should the underlying AoS process be denied. Here is the relevant code from again
21st Century Department of Justice Appropriations Authorization Act 2002.
‘‘(b) EXTENSION OF H–1B WORKER STATUS.—The Attorney General
shall extend the stay of an alien who qualifies for an exemption
under subsection (a) in one-year increments until such time as
a final decision is made—
‘‘(1) to deny the application described in subsection (a)(1),
or, in a case in which such application is granted, to deny
a petition described in subsection (a)(2) filed on behalf of the
alien pursuant to such grant;
‘‘(2) to deny the petition described in subsection (a)(2);
or
‘‘(3) to grant or deny the alien’s application for an
immigrant visa or for adjustment of status to that of an alien
lawfully admitted for permanent residence.’’.
But am sure, even a casual reading of it would show that it is not tenable anymore. The only option you will have is to file another adjustment of status or file for appeal or MTR on the denied petition to continue your stay in the US. Else, you must pack and go. Please note that your H1-B extension (annual increment) is very similar and almost exactly the same as how a person would file for an Advance Parole. In that it clearly states that the validity of AP would expire once a final decision is taken on the underlying Adjustment of Status. It is the same here.
The law governing your case is
8 USC 1184. This was amended in 2000 by the
American Competitiveness in the Twenty-First Century Act, 2000. Further this act was amended by the
21st Century Department of Justice Appropriations Authorization Act 2002.
Cool, dude. Glad that there is some progress. Right? So, did you get the affidavit or you submitted the actual civic certificate. Whatever it is, I am sure it will get through fine. You just hang on there, ok! I am sure your approval is just on the anvil.