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: <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 >