H1B extension filed after expiry

[manutod]

Hi All,

My Situation : H1(6th year) expired on Nov 24 2011. H1 extension received by USCIS on Nov 25.

My I-94 expires on Dec 4 2011. I-140 was approved on Oct 25 2011.

I have a few questions on my situation, for all guru's and experienced attorney's over here :

1. As there was a day delay in my extension, how would my legality, or lack of, be ?

2. Also, I am currently looking for an H1 transfer, would that be advisable ?

Also, my wife's PD is current, we have already filed for I-485, got the receipts in early Nov.

Would there be any effect on this, due to my current situation surrounding H1 ?

Thanks for any insight !

[karanmokati]

Although USCIS received the application on Nov 25, I am assuming you had sent it before that and hence you will be fine. You can stay in the US as long as the application is in process. Please note that you cannot work after Nov 24th though. This application should not affect your I-485 application and hopefully you get an EAD soon enough that you can start working again or alternatively, if you applied your H1 in premium processing, you should get your approval shortly.

All the best!

[manutod]

Thanks for your reply !

Yes, we have sent it on Nov 23 with Regular processing. Also I was assuming I can work once I receive the receipt number on H1 extension. And you are saying I cannot.

How about an H1 transfer at this moment ? Can I file H1 transfer (Premium) and start working once I receive the receipt(or approval) with extension still pending ?

Thanks Again in advance !!

[Attorney_13]

In order for an H1B extension petition to be considered timely filed, it must be filed (delivered - not sent) to the USCIS service center by the last day of the validity period as listed on the I-797 approval notice.

It is not clear that this H1B extension petition was timely filed. If it was not, and one does not have a valid EAD card, then one does not have employment authorization. Although, if one's I-485 application was previously filed and is still pending, then one may remain in the United States in an authorized period of stay.

Furthermore, if an H1B extension petition is not timely filed, then one will not be eligible to receive a further extension of their H1B status (I-94 card). The petition may, however, be approved for consular notification.

As it is not clear based on the facts whether the petition was timely filed, please consult directly with a qualified and experienced immigration attorney to discuss your case in detail.