If expired H1B and pending I485 can still work in US ?

[aish500]

Hi please respond on below queries will help to plan accordingly.

My H1B expiring in Dec 31st 2011 filed for H-1B Ext. Also priority date current from Nov 1st 2011 so will be filing for I485/EAD next month. Seems it takes 90 or more days to get EAD

Question - If my H-1B extension gets denied then I will be in "Pending AOS status" from Jan 1st 2012. But without EAD can I continue working for the same employer ? Or I have to leave the country and re-enter once EAD and AP are received as mostly employer won't keep me on bench ? Is there a way i can expedite EAD process to get it by Dec end ?

Please advise.

[Belle]

You must have some sort of work authorization - approved H1, pending H1, or EAD. Otherwise, the employment is unauthorized.

[pontevecchio]

"If my H-1B extension gets denied then I will be in "Pending AOS status" from Jan 1st 2012"

That is not true. You will be in awaiting AOS as soon as you file after the dates are current and get the receipt while you are still in any valid status..in this case H1.

Once your AOS application is on file which means you have the receipt while you are in valid H1 status you can stay even if the H1 is denied. What makes you think the H1 with the GC sponsor would be denied. In that case you would need to think about the GC itself. Surely it is not easier to get a GC than get a H1 petition approved? Talk to a Lawyer about 245k which forgives up to 180 days working out of status ie without H1 approval or a valid EAD. You cannot expedite the EAD for this reason.

[kar3456]

Hi,

 

I am almost the same situation now.

 

My H1b is getting expired in next 2 months. My priority date is current. I am planning to apply I-485 asap.

I checked with my employer if i need to apply H1 extension in this case.He suggested that i don't need to apply H1 extension.He told me to apply I485(AOS) asap. And also include I-765(EAD) and AP at the same time. So that it could be possibly approved before H1 expired(before 2 months).

 

1) He suggested if it's needed we may apply H1 extension a week before it's expiry.Is it advisable? Can i work with Pending H1? 

 

2) He told that my status will be valid once i applied I-485 eventhough H1 expired.

Only work permit option would be i can work until H1 expired after that i can work once i get EAD card. what about if i want to work in between these periods(after H1 expired and waiting for EAD (I-765) card), can't i work?

 

3) can't i work with I-485(AOS) pending and waiting for EAD card , but H1 expired.

 

Please suggest if i need to go for H1 extension since it's way of spending more.

 

Note: my 6 yrs is getting done within 3.5 months.

 

Thanks.

 

 

 

[catx]

See Belle's post above. You can only continue to work past the expiration of your current H-1B visa if (a) a H-1B extension visa petition has been filed and approved, (b) a H-1B extension visa petition has been filed and is in process with the USCIS (in which case there is a 240 day period of authorized employment and stay), or © an I-485 adjustment of status application has been filed and based on that (concurrently) an I-765 employment authorization application has been filed and approved (you have received the EAD). A pending I-485 adjustment of status application by itself does not provide employment authorization.

 

A couple caveats with respect to © are that it takes at least a couple weeks to prepare all the necessary I-485 adjustment of status documentation including the required medical examination, and an I-765 employment authorization application typically takes 60-90 days for approval. The prudent course of action is to have your employer file a H-1B extension visa petition.

[Jura]

My case is as above.My I 140 was approved in June 2019, on EB1 category, but I could port my PD of Oct 2011 (Applied as EB2). I have applied for the AOS in July 2019 and am still awaiting my EAD / AP. My H1 B expires on Sept9th. My Lawyer said I could apply to renew the H1 1 week before it expires, in case EAD does not come. Now lawyer says that I am not eligible for renewal because I have finished more than 6 years on H1. Can H1 not be renewed when AOS is under way? 

Thanks