From: noorlag@asdg.enet.dec.com (My name is...)
Subject: Re: H-1B expired while I-485 is still pending
Message-ID: <1993Oct10.185234.7717@nntpd.lkg.dec.com>
Sender: usenet@nntpd.lkg.dec.com (USENET News System)
Organization: Digital Equipment Corporation
References: <CEL377.At7@uceng.uc.edu> <294183INNhbu@srvr1.engin.umich.edu> <9OCT199315305354@orion.cmc.uab.edu> <1993Oct9.214419.14433@unlv.edu>
Distribution: usa
Date: Sun, 10 Oct 1993 19:29:10 GMT
Lines: 60


In article <1993Oct9.214419.14433@unlv.edu>, vincewho@unlv.edu (vince) writes...
>Dear netters:
>
>Perhaps someone can help me out here. (I got contradictory advices from
>various lawyers and from INS.)
>
>My employer sponsors me for a green card while I am working here in US on a
>H1-B visa. I-140 was approved in late January 1993 and I submitted a complete
>I-485, Adjustment of Status, one month later (end of Feb, 93.)    While I
>was waiting for the interview notice from the local INS office, my H1-B
>expired in mid-July. We managed to submit an application to extend H1B by
>the end of June. However, my boss failed to file an ETA-9035 at DOL at that
>time. Later my boss supplemented the application with a filing of ETA-9035
>but several mishaps delayed the certification of ETA-9035. Since we could
>not submit the certified ETA-9035 (nor any evidence of filing,) INS denied
>my extension and required me to leave the country.
>
>Questions:
>(1) Once I knew that the extension of H1-B was denied, I went to the local
>    INS office and obtained an Employment Authorization Document based on
>    the fact that my I-485 is pending. Am I still legal to stay and work
>    before the I-485 is finalized?

Your EAD allows you to live and work in the USA until the INS has made a
decision on your I-485. You shouldn't have filed for an extension of your
H-1B, because you can't obtain a nonimmigrant visa while you have an
application for an immigrant visa (green card) pending. So I am not surprised
that your H-1B extension was denied. What you should have done is file for an
EAD based on a pending I-485 once your H-1B expired (which you did later).
Once you file an I-485 you cannot enter the USA on a nonimmigrant visa. Which
means that you need to stay in the USA until the I-485 is approved.
>
>(2) A worker at the local INS told me that since I-485 was supposed to
>    change my status from H1-B to PR, my H1-B visa must be maintained. She
>    said I should appeal the extension of H1-B.  Is is true?

No, I don't think you should appeal the denial of your H-1B extension, because
you shouldn't have filed for one in the first place.
>
>(3) Should I-485 be denied, is the I-140 still good and can I apply for
>    PR at the US embassy at my home country?

Approval of an I-485 is normally a formality, unless you have lied on the
I-485 application form. So, if your I-485 is bona fide, don't worry and just
stay put until it is approved. If your I-485 is not bona fide, then
re-applying from your home country won't help you.

I am surprised to hear the INS takes so long to process your I-485. In my
case, I filed an I-485 in December 92. There and then I was given a interview
date in March 93. At the interview, I got my passport stamped, and the green
card came in the mail 8 weeks later. This was the INS office in Boston.
You may want to get an update from the INS on the status of your I-485.

I am not an immigration specialist, so standard disclaimers apply.
>
>Many thanks in advance!!
>
>Vincent
>


