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Kbpr27

Pending 485 status, can h1b be filed?

By Kbpr27 in Work Visas

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Kbpr27 Newbie

Kbpr27   0

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Filed: AOS (pnd) Timeline
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I am pending I485/AOS status with h1b expired and awaiting EAD. So no underlying status. I am getting a job and employer want to file h1b. I am getting conflicting advise from two different attorneys.  One of them said that I can not file h1b as I don't have any underlying status to change other says I can file. Please help with your advise. Thanks!
Chancy Grand Master

Chancy   6,243

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Filed: IR-1/CR-1 Visa Country: Philippines
 Timeline
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12 hours ago, Kbpr27 said:

One of them said that I can not file h1b as I don't have any underlying status to change other says I can file.

 

If you mean Change of Status (COS) to H1B, the attorney is correct -- you cannot COS when you have no legal non-immigrant status to change from.

 

Is your I-485 family-based?

 

  • 2 weeks later...
randomstairs Community Regular

randomstairs   304

Posted
Filed: Citizen (apr) Timeline
Posted

If the employer wants to file for H1B for you let them go right ahead with it. Worst case scenario is: you don't get the H1B approved. Any financial loss from it would be on the employer's end, so there is no risk for you. It doesn't affect your I-485 or the EAD either. In fact, it's advisable to maintain the H1B or other non-immigrant status when your GC is pending.

 

BTW: if you have a valid EAD, it may be an illegal discrimination for an employer to demand the H1B status as a condition for hiring you 

03/04/2016 AOS (EB2-NIW concurrent with I-485) mailed to Lewisville TX Lockbox
03/07/2016 AOS delivered to USCIS and signed
03/12/2016 Case received by Nebraska Service Center (NSC)
03/14/2016 Text notification received for I-140/I-485/I-765/I-131.
04/08/2016 Biometrics notice received for 04/21
04/13/2016 Biometrics early walk-in completed.
04/15/2016 EAD/AP combo card received in mail.

 

Long wait begins...

 

11/04/2016 I-140/485 cases transferred from Nebraska to TCS
12/01/2016 Prepared package for EAD/AP renewal (expires 04/09/2017)
12/23/2016 USCIS suddenly changes several forms, invalidating my EAD/AP renewal package (not yet sent)
12/27/2016 USCIS suddenly reforms the entire NIW criteria system, replacing a 20 years old one. Uncharted waters. 
01/07/2017 (Saturday!) EAD/AP renewal package with new forms received in Phoenix "reception desk"
01/17/2017 EAD/AP renewal case accepted; text/email with receipt numbers was received
01/30/2017 Law firm finally confirms that USCIS has suspended processing all EB2-NIW cases due to new criteria. 
02/23/2017 USCIS slowly starts adjudicating NIW cases again.
04/21/2017 Extended EAD/AP received in mail. Valid for 2 years. 
05/06/2017 Received a massive RFE on I-140 NIW case.
07/20/2017 RFE response received by USCIS (a very long response with 30 pages of docs)
09/14/2017 I-140 NIW approved!!! 
11/28/2017 RFE for new medical issued (plus another request re Supp J for employment which is clearly issued in error)
12/04/2017 RFE received in mail
12/07/2017 repeated medical exam for I-485
12/08/2017 Attorney receives documents for responding to I-485 RFE
12/21/2017 Response to RFE received by USCIS 
02/09/2018 I-485 approval (text, email) :)
02/08/2018 I-485 approval notice issued (the "welcome letter") - I'm LPR now
02/16/2018 Green card received
 
11/14/2022 Filed N-400 online; receipt and biometrics reuse form received online
03/07/2023 N-400 Interview scheduled 
04/xx/2023 N-400 approved, same-day Oath ceremony completed. I'm a US citizen.
05/xx/2023 US passport in hand

 

 
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