Can we file MTR if 7th year Extension is denied

[dallastexaslaw]

Hi,

 

I applied for EB2 and my perm was not certified. I filed for 7th year extension based on the perm and got an RFE asking for proof that my case is still pending with BALCA. We submitted the required documents and awaiting to hear from USCIS which I am hopeful will get approved.

 

Not to sound pessimistic, but in case if my 7th year extension gets denied, can I apply for MTR to buy some more time to be still working? Or I need to stop working right when there is denial from  USCIS.

 

Please let me know.

 

[jairichi]

A MTR does not allow you to stay in US. In that case how can you work?

[JoeF]

An MTR doesn't give you any rights to stay.

[rahul412]

MTR doesn't provide any legal status, so you cannot work. You have either file COS to dependent status or leave US and enter with H1 approval.

[permaudit]

If you are Out of status by the time you are filing MTR. Then you will not be able to work. The decision on the MTR cases are completely based on the adjudicating officer and if that is not favorable to you, then you would have accrued illegal stay from the date of your I94 expiry.

 

Also, considering your PERM is under process for more that 365 days is when you would be apply for 7th year extension.

[dallastexaslaw]

Thanks for the feedback. My labor application during 5th year of H1-B was not certified, and since it was 365 days prior to the completion of the 6th year of H1-B, my attorney used that clause to file for the 7th year H1-B extension. The 6th year H1-B ended June last month while I got the RFE for 7th year extension couple months ago for which we submitted the requested documents. Can I work on the same H1-B until I hear about the decision of RFE or my H1-B time frame is already over for the 6th year.

 

Meanwhile I was married to US citizen this year and had filled in the initial EAD/AP application couple of weeks ago and I am expecting EAD in next 3-4 months. Can I keep working on the same job regardless of the outcome of the RFE? Or do I give a break for few months until I get my EAD? Or regardless of anything to do with H1-B, since I am filing for EAD through my family, do I still need to worry about being tied up with H1-B regulations and deadlines? What are my options if my H1-B extension is denied? Please advise.

[rahul412]

You don't have H1 at this time, so you cannot work.

[dallastexaslaw]

Well, technically speaking, though my 6th year H1-B date is complete , (and also excluding the days I was out of US for vacation), I still have the 7th year extension case decision pending with USCIS and I reckon I can work until I get to hear about the decision from them.

 

Worst case scenario, even if the 7th year extension request is not accepted ( though we submitted all necessary required requested documents), I will have the EAD in couple of months hopefully. Does this two months of non H1-B period affect the EAD?