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Matt Titchener

Cutting it close with filing I-485/I-130 (AOS) and expiring H-1B -- lots of questions!

By Matt Titchener in Adjustment of Status from Work, Student, & Tourist Visas

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Matt Titchener Newbie

Matt Titchener   0

Posted
Filed: Other Timeline
Posted

Hello everyone,

I searched the forums here as thoroughly as a I could, but could not find categorical answers to my queries; this is my first post at VisaJourney.com.

So cracking on, here is my situation:

  • I am a British Citizen
  • I came to the U.S. on a
    3-year H-1B visa
  • I got married (for all the right reasons!) to a
    U.S. Citizen
    one and half years through the visa
  • Didn't file for my Adjustment of Status - waited for just under a year before I even started looking at it (my own fault; I know it's not clever and I regret it) - simply relied on the H-1B to travel abroad etc.
  • My H-1B and I-94 are due to
    expire on September 30, 2009
  • I am taking the
    I-485/I-130/
    EAD
    /
    AP
    route to gain my permanent residency and will be
    filing within the week

So that's the scene, here are my questions (I hope I am not too verbose, just trying to be clear):

  1. From my calculations, from the day I send the
    AOS
    in the mail to the day I am required to leave the U.S. (due to the H-1B expiration) will be about
    68 days
    - is it likely that my
    AOS
    status will be "pending" within that time frame? (It is my understanding that as long as my status is
    pending on an I-485
    I am legally allowed to stay in the U.S. - please correct me if I am wrong).
  2. What constituents a pending status on the
    AOS
    , is it a
    Notice of Action 1
    , or simply my having sent in the paperwork?
  3. If an NOA1
    does
    indicate a pending status, how long does it take from the sending of the package to receiving an
    NOA
    ?
  4. Does a
    RFE
    come before or after an
    NOA
    ? That is, if my package isn't prepared properly enough can it delay my receiving a pending status? (This is important to me as then I know how careful to prepare my package).
  5. Given that I have approximately 68 days left on my H-1B, I technically have enough time to apply for an H-1B extension, but is that worth it? If the likelihood of the above
    AOS
    going through is high, is it worth spending the extra time, money and effort on an H-1B extension?
  6. On the assumptions that I do
    not
    extend my H-1B, and my
    AOS
    is marked as pending, but my
    EAD
    hasn't come through yet (I hear that's takes around 90 days from filing), how do I deal with my employer during that time frame? Simply resign from work for the month or two until my
    EAD
    arrives?
  7. If I
    do
    end up having to leave the country due to my expired H-1B then what happens to my I-485 status that I just filed? Is it
    simply abandoned
    and I have to try again? Where would I even start in that case?
  8. Last question I promise
    :)
    This is what is confusing me the most... say I leave for Canada for a while to stay legal (as there I would just be a tourist), and then say that for whatever reason all my
    AOS
    paper work is
    NOA
    'd,
    how do I get back in
    as I don't have a I-94 nor do I have an AP document. Catch-22?

I know I've asked a lot of questions here, and I also know that this problem is a result of my dragging my feet on this issue, but I'm here now and trying to resolve it as best I can. I hope I've been clear enough for accurate answers - above all I just want to retain a legal presence in the United States. I really appreciate all the help you can give me (and have given me during my "lurking" research on this site so far).

Take care,

Matt

Bobby+Umit Mentor

Bobby+Umit   161

Posted
Filed: Lift. Cond. (apr) Country: Turkey
 Timeline
Posted (edited)
Hello everyone,

I searched the forums here as thoroughly as a I could, but could not find categorical answers to my queries; this is my first post at VisaJourney.com.

So cracking on, here is my situation:

  • I am a British Citizen
  • I came to the U.S. on a
    3-year H-1B visa
  • I got married (for all the right reasons!) to a
    U.S. Citizen
    one and half years through the visa
  • Didn't file for my Adjustment of Status - waited for just under a year before I even started looking at it (my own fault; I know it's not clever and I regret it) - simply relied on the H-1B to travel abroad etc.
  • My H-1B and I-94 are due to
    expire on September 30, 2009
  • I am taking the
    I-485/I-130/
    EAD
    /
    AP
    route to gain my permanent residency and will be
    filing within the week

So that's the scene, here are my questions (I hope I am not too verbose, just trying to be clear):

  1. From my calculations, from the day I send the
    AOS
    in the mail to the day I am required to leave the U.S. (due to the H-1B expiration) will be about
    68 days
    - is it likely that my
    AOS
    status will be "pending" within that time frame? (It is my understanding that as long as my status is
    pending on an I-485
    I am legally allowed to stay in the U.S. - please correct me if I am wrong).

    Once you get the
    NOA
    - you are "applicant adjusting status" which locks in your legal status.

  2. What constituents a pending status on the
    AOS
    , is it a
    Notice of Action 1
    , or simply my having sent in the paperwork?

    NOA
    from the
    AOS
    only.

  3. If an NOA1
    does
    indicate a pending status, how long does it take from the sending of the package to receiving an
    NOA
    ?

    "time varies"

  4. Does a
    RFE
    come before or after an
    NOA
    ? That is, if my package isn't prepared properly enough can it delay my receiving a pending status? (This is important to me as then I know how careful to prepare my package).

    From the moment you send it in (
    AOS
    ) till you are approved (at interview if applicable) you are subject to a
    RFE
    . If your initial package is flawed, and they reject it, it will delay your status. However, they usually will send the
    NOA
    (which means they initially accepted the package) - then send any
    RFE
    's as they dig deeper.

  5. Given that I have approximately 68 days left on my H-1B, I technically have enough time to apply for an H-1B extension, but is that worth it? If the likelihood of the above
    AOS
    going through is high, is it worth spending the extra time, money and effort on an H-1B extension?

    I wouldn't - and there are some issues with H-1B/
    AOS
    - google it.

  6. On the assumptions that I do
    not
    extend my H-1B, and my
    AOS
    is marked as pending, but my
    EAD
    hasn't come through yet (I hear that's takes around 90 days from filing), how do I deal with my employer during that time frame? Simply resign from work for the month or two until my
    EAD
    arrives?

    Yes, you should work something out with your employer (like take some time off? (vacation))

  7. If I
    do
    end up having to leave the country due to my expired H-1B then what happens to my I-485 status that I just filed? Is it
    simply abandoned
    and I have to try again? Where would I even start in that case?

    If you get the
    NOA
    from the
    AOS
    -
    you do not
    have to leave the country, regardless if your H-1b expires.
    If you leave without
    the AP (advanced parole) - you will have abandoned your application and another visa process will be needed.

  8. Last question I promise
    :)
    This is what is confusing me the most... say I leave for Canada for a while to stay legal (as there I would just be a tourist), and then say that for whatever reason all my
    AOS
    paper work is
    NOA
    'd,
    how do I get back in
    as I don't have a I-94 nor do I have an AP document. Catch-22?

    Don't leave without the AP - You have been warned (twice)

I know I've asked a lot of questions here, and I also know that this problem is a result of my dragging my feet on this issue, but I'm here now and trying to resolve it as best I can. I hope I've been clear enough for accurate answers - above all I just want to retain a legal presence in the United States. I really appreciate all the help you can give me (and have given me during my "lurking" research on this site so far).

:guides:

Take care,

Matt

Edited by Bobby_Umit

My Advice is usually based on "Worst Case Scenario" and what is written in the rules/laws/instructions. That is the way I roll... -Protect your Status - file before your I-94 expires.

WARNING: Phrases in this post may sound meaner than they were intended to be. Read the Adjudicator's Field Manual from USCIS

NArocks Mentor

NArocks   13

Posted
Filed: Citizen (apr) Country: Colombia
 Timeline
Posted

And if you are granted AP and you H1B has already expired DO NOT USE. Your best bet is not to leave the country ( US ) until you have your GC inHand. The guides are amazing take a look at them :D

Why is it that the only one who can stop the crying is the one who started it in the first place?



More Complete Story here
My Saga includes 2 step sons
USC Married 4/2007 Colombian on overstay since 2001 of B1/B2 visa
Applied 5/2007 Approved GC in Hand 10/2007
I-751 mailed 6/30/09 aapproved 11/7/09 The BOYS I-751 Mailed 12/29/09 3/23/10 Email approval for 17 CR 3/27/10
4/14/10 Email approval for 13 yr Old CR 4/23/10

Oldest son now 21 I-130 filed by LPR dad ( as per NVC CSPA is applying here )
I-130 approved 2/24
Priority date 12/6/2007
4/6/2010 letter from NVC arrives to son dated 3/4/2010
5/4/10 received AOS and DS3032 via email
9/22/10 Interview BOG Passed
10/3/10 POE JFK all went well
11/11/10 GC Received smile.png


 
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