time constraints..H1B - GC

R

redstorm

Registered Users (C)
Hi,

First time posting here. Would appreciate any comments.

I have been working for the company for 6yrs ( including my practical ) and my H1 expires in 06/05. Tursted a wrong guy for a long time and found that the necessary filings were not done ( for GC ) since I transfered to the other state 3 years ago. Found out that the guy I paid thousands of dollars were out of work for a long time due to car accidents, depression etc...

Long story short, I hired a local lawyer finally, had my co to do the job search and will file the labor cert app in December.

I am in the state where the normal processing time has been 2-3 month. I know the time constraints but hoping that we get the labor cert a few month before the H1 expiraiton so I can request EAD to continue working without interruption.

I do not know much about "Perm" but I think my application will be sent before year end ( early Dec ).

I am mentally prepared for all this not to happen and I have to depart the US, however, I would appreciate if anybody can tell me what the odds of getting labor cert within the time frame I want.

Also, it looks to me that the new way they are going to process the application has a negative impact on the less crowded states. What do you think is the time frame you can get the labor cert after these changes ?? ( assuming that your employer has done a proper job search and prepared the documents well )

TIA

red
 
REDSTORM,

7th year extension is granted only if your LC/I-140 or I-485 is pending and process was started 365 days before end of 6th year. In your case that is out of the question unless you find already approved LC.

LC process, I assume you are looking for RIR because it gets process faster. To file for RIR it would take 2.5 to 3 month to complete the processes before you would be able to file for LC as RIR.

Best bet would be to take a chance and file your LC in Jan 2005. Chances are if PERM is implemented then LC will be processed very fast and you might be able to meet the dead line. If Perm is not implemented then you LC application will end at NPC which will be one centre for LC process it will not require STATE and then REGIONAL and again you have a better chance.

Even if you manage to file RIR by December 2004 and it gets cleared from STATE, your LC application may end up in BRC for REGIONAL where it will be processed at FCFS bases and that can take while.

Because of NPC / BRC and PERM installation, almost every thing is processing very slow if not on hold. Because all the main DOL centre are going through transitional phase.

You will need your I-140/I-485 approval pending for 90 days to qualify for EAD.

Hope this helps.
 
In Lc

IN LC,

Thank you very much for your reply. It's helpful.

I do see you point. My local says that their "gut feeling" is that we file the thing ASAP.

With My H1 expring in June/05, our best case is to be ready filing I-140 by March so we will have 90 days petition time before we can request EAD.

Now my last question is:

What if I get the LC right before my H1 exires in June and file I-140 at the time. I know I would not be able to work but would it make it legal staying in the US?? If we can file I-140, say...June 1st before the H1 expiration and I have to wait 90 days before I can request EAD, is is legal for the employer to put me on administrative leave or whatever so I can stay/wait in US until getting EAD??

TIA

red
 
See Inline.....

redstorm said:
IN LC,

Thank you very much for your reply. It's helpful.

I do see you point. My local says that their "gut feeling" is that we file the thing ASAP.

With My H1 expring in June/05, our best case is to be ready filing I-140 by March so we will have 90 days petition time before we can request EAD.

Now my last question is:

What if I get the LC right before my H1 exires in June and file I-140 at the time. I know I would not be able to work but would it make it legal staying in the US??
... As soon as you get LC approved, file I-485 along with I-140 to maintain your status. Without any valid visa, filling I-140 alone will not preserve your legal stay in US.

If we can file I-140, say...June 1st before the H1 expiration and I have to wait 90 days before I can request EAD, is is legal for the employer to put me on administrative leave or whatever so I can stay/wait in US until getting EAD??
... This is something you need to work with your employer. From immigration point of view, you will be fine if you sit home for 90 days and then start working for employer again.


TIA

red
Click to expand...
 
usnycus

USNYCUS,

Thank you very much for the info.

It was good to know that ( will double check with my attorney ) because I work in local school system that the whole summer I sit at home anyways.

I know that I can not be paid during the time, and my only hope is that I can get the I-140 filed in time....Amen.

Thank you again for your time.

BR

Red
 
Just make sure you don't cash the paycheck even if employer accidentally generates one while you wait for EAD.
 
IN LC & USNYCUS

Hello again,

Thank you for your replies. I talked to my attorney again talking about possible scenarios. There ware things I forgot to ask him.

1. Let's say we file the LC application on 12/15/04, and my H1B expires in 06/05 before I get the LC approval, it will be 12/15/05 when I can apply for H1B extension, correct??

2. In that case I can't work from June December but I can physically/legally stay while I wait for LC approval as long as I sit out of work?? If so, what type of Visa??

3. I have 2 different possible employers for the same type position including current employer ), and both are doing job search which will be done early Dec. I do not know what to do if I were to extend my H1B. I think this issue is likely to come up as I do not see the LC getting approved before June/05, in which case I can request EAD. OR.. can I still request EAD if I get the LC approval after my H1 expired ( 90 days after approval ) ???

I appreciate your insight as I am starting to get curious/nervous/confused...



TIA

Red
 
See Inline...

redstorm said:
Hello again,

Thank you for your replies. I talked to my attorney again talking about possible scenarios. There ware things I forgot to ask him.

1. Let's say we file the LC application on 12/15/04, and my H1B expires in 06/05 before I get the LC approval, it will be 12/15/05 when I can apply for H1B extension, correct??
... Yes

2. In that case I can't work from June December but I can physically/legally stay while I wait for LC approval as long as I sit out of work?? If so, what type of Visa??
... You cannot stay here if you don't have any valid non-immigrant status while you wait for LC approval.

3. I have 2 different possible employers for the same type position including current employer ), and both are doing job search which will be done early Dec. I do not know what to do if I were to extend my H1B. I think this issue is likely to come up as I do not see the LC getting approved before June/05, in which case I can request EAD. OR.. can I still request EAD if I get the LC approval after my H1 expired ( 90 days after approval ) ???
... You can request EAD only after applying I-485. You are not eligible to apply EAD based on pending/approved LC.

I appreciate your insight as I am starting to get curious/nervous/confused...



TIA

Red
Click to expand...
 
thank you - usnycus

USNYCUS,

Thank you for a quick reply.

It looks like I may have to leave the US temporarily unless I get LC approved and I-140 filed before my H1 expiration.

If I were to request H1 extention it's not before 12/2005, and I the EAD request depends on when I can file 485 + I-140....

Again, thank you for clarificaiton.

BR

Red
 
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