Renew H1B while pending I-485 & I-765

[Normc 0]

Hi folks,

Thank you in advance for any contributions. I'm not sure what my options are and what possible consequences for my situation.

My wife currently has a H1B visa that will expire in June 2009. We are about to submit the I-130 packet & I-485 packet in Feb 2009. The wife has another job lined up starting in June 2009 and will require another H1B with the new employer.

Should we file the I-765 Employment application w/ the I-485?

Are there any consequences of filing I-765 and requesting a new H1B simultaneously?

Given the timeline, I do not have a high confidence level to obtaining the EAD approval by June 2009. What possible measures may we take to assure compliance with US immigration laws and ensure her availability for work in June 2009?

Thank you again.

[JeremyR 8]

If you were to file the EAD based on a pending adjustment of status today, your wife should have her card (assuming there are no RFEs) by May... It's a gamble of course and I don't envy the position you're in but USCIS are supposed to process and issue EADs within 90 days.

I have no idea about the H1-B related parts of your question, sorry.

[Mint518 0]

Hi folks,

Thank you in advance for any contributions. I'm not sure what my options are and what possible consequences for my situation.

My wife currently has a H1B visa that will expire in June 2009. We are about to submit the I-130 packet & I-485 packet in Feb 2009. The wife has another job lined up starting in June 2009 and will require another H1B with the new employer.

Should we file the I-765 Employment application w/ the I-485?

Are there any consequences of filing I-765 and requesting a new H1B simultaneously?

Given the timeline, I do not have a high confidence level to obtaining the EAD approval by June 2009. What possible measures may we take to assure compliance with US immigration laws and ensure her availability for work in June 2009?

Thank you again.

I strongly recommend that your wife to file I-765 regardless of filing of H1b renewal, becasue as far as I know, simultanious filing of AOS (including I-765) and H1b renewal will have no influence each other (e.g. see http://www.lawbench.com/immigration-forum/...ning-h1b-status)

I think the best way is to negotiate the starting date with the new employer (e.g. to commence her employment after the receipt of AOS based EAD, etc.). I do not know of the details of changing of H1b employer or renewing H1b visa. But I think extention of H1b visa itself will usually take 3-4 months. So if you want to make sure the extention of your wife's H1b visa be approved on time, applying the visa renewal using premium processing would be one of the options (I belive it would cost additional $1,000 but the case will be adjudicated within 15 days).

Edited February 16, 2009 by Mint518

[Mint518 0]

I checked USCIS website, and would like to supplement/correct my previous post.

But I think extention of H1b visa itself will usually take 3-4 months.

To be accurate, processing time for the adjudication of I-129 (Petition for A Nonimmigrant Worker) varies depending on the service centers to which I-129 will be filed. So, it could be adjudicated in 2 months (in case of CSC) or could be way way longer than 4 months (e.g. If the information in USCIS's website is correct, as of November 30, 2008, NVS is adjudicating the I-129 (Petition for A Nonimmigrant Worker H-1B - Specialty occupation - Extension of stay in the U.S.) filed on August 01, 2006).

FYI - In my recollection, adjudication for the I-129 for my H1b (initial issuance) took around 4 months and I heard similar procedures will be taken to apply for initial issuance and extention; that's why I though it would be 3-4 months for extention, too.

So if you want to make sure the extention of your wife's H1b visa be approved on time, applying the visa renewal using premium processing would be one of the options (I belive it would cost additional $1,000 but the case will be adjudicated within 15 days).

If the premium processing service is used, "within the 15 day calendar period USCIS will issue an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation." (See " How Do I Use the Premium Processing Service?) So, even if premium processing service is used, it would be better to file I-129 as early as possible so that employer of your wife will have enough time to respond REF if they recevie it.

[Mint518 0]

Sorry for the multiple posts.

I did further research - as I am debating whether I should ask my employer to apply for the extention of my H1b (when time comes) or simply switch to marriage based EAD if there will be any delay in my AOS process.

It seems "If the petition is filed in a timely fashion (i.e.: the initial period of employment did not expire prior to filing the extension request), the individual may continue to work while the extension is pending. " (http://www.dartmouth.edu/~ovis/updates/h1b/extensions.html). So, as long as your wilfe keeps H1b status and timley file the extention request, she can legally work in the U.S. based on pending H1b extention application (and no need to use premium processing service). But please consult with an immigration attorney for the accuracy.

Edited February 17, 2009 by Mint518

[Normc 0]

Thank you everyone for their responses, especially Mint518 for the extensive research. I believe I will need to just file the I-765 and I-485 ASAP. The sooner, the better of the chance we receive employment authorization.

I spoke with someone from the USCIS hotline, which had explained to me... if processing I-485 in pending status and a H1B petition is filed afterwards, there is a chance the H1B will be denied.

The reason being...

A H1B visa is for individuals who plan to work but has a date in which the visa will terminate and depart from the US.

An I-485 pending with a I-765 pending means for individuals who plan to work but does not have a date in which the visa will terminate and depart from the US.

Therefore it is always in the best interest to file for the I-765 regardless of any other type of employment based visa. Does that make sense? It sort of makes sense to me. So I will plan to file the I-765 asap and will just consult her employer about the H1B petition.