AOS and H1-B expiration issue

[golubika 0]

Hi all,

I need some help, please:

My husband is currently on a H1B visa. He has been in the United States for 7 years. The company he works for filed for his green card 2 years ago but that hasn’t come through yet (it may take another year or two apparently!) and is currently on a H1B extension that expires at the end of the month. At this time, the company he works for is about to file for yet another 1 year extension on his H1B petition.

Now, I am a US citizen so I understand we can apply for his Adjustment of Status in parallel (we’ve been married for 2 ½ years).

Many of the forms we have to fill out (say I-485 and I-130) ask for the date of expiration of his I-94 (which is sometime towards the end of Feb 2006). They also ask for a copy of his US visa (which also has an end of Feb 2006 expiration date).

The question that I have is:

Do we have to have his US visa renewed BEFORE we can file for his Adjustment of Status?

The law firm that is dealing with his H1B extension says that the date on his passport does not matter as long as his request for extension is filled before his visa expires. That might be fine but it doesn’t solve the underlying problem: how do we fill out these forms? What dates do we use? And how about the copies of his Visa and I-94? Does it matter that they will have expired by the time USCIS comes to look into these documents?

I thank you in advance for your help,

golubika

[hcj 0]

You do not need to have his H-1B renewed before you file a marriage-based AOS application. Of course it is best to remain "in status" at all times, so it would be optimal to get your application in before the expiration date on his I-94. But, USCIS usually "forgives" overstays if one is married to a USC, so if you can't quite get things together and end up sending it in a little later, it most likely will NOT cause any problems. (Just be careful that he doesn't accrue 180 or more days of "unlawful presence" -- if he does, he should not travel outside the US until he gets his green card or he will risk getting stuck outside with a 3 or 10 year bar to re-entry.)

I believe your law firm is correct regarding the extension -- if they file for an extension before the date on his I-94, he will still be in the US legally until the extension is denied. This presumes he is eligible for an extension -- I thought 7 years was the absolute max on an H-1B, but I'm no lawyer.

Since your time frame is short, IMHO it would be beneficial to have an immigration attorney do your filing to ensure that everything is filled in and filed correctly. Can your current law firm handle your marriage-based filing as well? Maybe your husband can make a case to his company that this will get him a green card faster and cost them less in the end, and get them to pay for it. It is not that hard to do it yourself, but it's like doing your taxes on the 1040 form the first time -- a bit bewildering and a lot of reading required, and best to have a lot of time for it.

I will give you a general idea of what you need to file here. The four forms with fees associated are:

I-130 (Petition for Alien Relative) -- you file this one

I-485 (Adjustment of Status) -- your husband files this one

I-765 (Employment Authorization) -- your husband files this one

I-131 (Advance Parole -- permission to return to US after traveling abroad) -- your husband files

don't forget to include the biometrics fee

There are a bunch of other associated forms, see the link below for the list:

http://uscis.gov/graphics/howdoi/LPRApplication.htm

Answer all questions truthfully -- if the expiration date of his I-94 is February XX, that's what you put unless he gets a new I-94 with a different date. As mentioned earlier, USCIS generally forgives any overstay if one is married to a US citizen, so it should not be a problem even if they receive your application after the dates on his I-94 and visa.

P.S. It is the date of receipt that matters -- not when they actually get around to looking at your documents. A few weeks after filing you will get a notice of receipt from USCIS. From that date forward your husband will be legally in the US as an "adjustment applicant" until his adjustment application is decided upon.

[golubika 0]

HCJ, thanks for your reply!

Six years is the maximum allowed on H1B but the extension is based on the fact the company my husband works for filled for his greencard over a year before his H1B expired – and that is the reason why he was granted his current extension in the first place.

We don’t expect to be out of compliance for a single day. We could file for Adjustment of Status after the extension is approved and include the approval notice or file before the current extension expires (at the end of February, 2006). In either case, we will file for extension of his H1B in proper time. Is either option preferable? Would you recommend one over the other?

One other question: the date of receipt from the USCIS – is this the date they received the paperwork on the mail or the date they entered the case into their computers?

Thank you for your help!

golubika

You do not need to have his H-1B renewed before you file a marriage-based AOS application. Of course it is best to remain "in status" at all times, so it would be optimal to get your application in before the expiration date on his I-94. But, USCIS usually "forgives" overstays if one is married to a USC, so if you can't quite get things together and end up sending it in a little later, it most likely will NOT cause any problems. (Just be careful that he doesn't accrue 180 or more days of "unlawful presence" -- if he does, he should not travel outside the US until he gets his green card or he will risk getting stuck outside with a 3 or 10 year bar to re-entry.)

I believe your law firm is correct regarding the extension -- if they file for an extension before the date on his I-94, he will still be in the US legally until the extension is denied. This presumes he is eligible for an extension -- I thought 7 years was the absolute max on an H-1B, but I'm no lawyer.

Since your time frame is short, IMHO it would be beneficial to have an immigration attorney do your filing to ensure that everything is filled in and filed correctly. Can your current law firm handle your marriage-based filing as well? Maybe your husband can make a case to his company that this will get him a green card faster and cost them less in the end, and get them to pay for it. It is not that hard to do it yourself, but it's like doing your taxes on the 1040 form the first time -- a bit bewildering and a lot of reading required, and best to have a lot of time for it.

I will give you a general idea of what you need to file here. The four forms with fees associated are:

I-130 (Petition for Alien Relative) -- you file this one

I-485 (Adjustment of Status) -- your husband files this one

I-765 (Employment Authorization) -- your husband files this one

I-131 (Advance Parole -- permission to return to US after traveling abroad) -- your husband files

don't forget to include the biometrics fee

There are a bunch of other associated forms, see the link below for the list:

http://uscis.gov/graphics/howdoi/LPRApplication.htm

Answer all questions truthfully -- if the expiration date of his I-94 is February XX, that's what you put unless he gets a new I-94 with a different date. As mentioned earlier, USCIS generally forgives any overstay if one is married to a US citizen, so it should not be a problem even if they receive your application after the dates on his I-94 and visa.

P.S. It is the date of receipt that matters -- not when they actually get around to looking at your documents. A few weeks after filing you will get a notice of receipt from USCIS. From that date forward your husband will be legally in the US as an "adjustment applicant" until his adjustment application is decided upon.

[hcj 0]

I don't think it makes any difference whether you file before the current extension expires or after you receive the approval notice for the new extension. If it were me, I would just file as soon as possible because the sooner you get in line, the sooner he gets his green card.

Re: the date of receipt -- that is not necessarily the date that your packet gets to their mail room. It's the date that they log it in as having been received.

Good luck with everything!