Can I file I-485 when H1B extension is pending?

[wshfei2]

I filied my H1B extension 4 months ago and still pending. Now my H1B just expired and My PD is current. Can I file 485 with the receipt notice?

On form 485, I need write my previous 797 I94 date (expired). Will this be a problem? Thank you.

[newacct]

Are you immigrating in an employment-based category (EB1, EB2, or EB3)? If so, then INA 245(k) applies, which means you are eligible for I-485 as long as you have not been out of status or working illegally for more than 180 days since your most recent admission. (See 7 USCIS-PM B.8(E).) So assuming you have not been out of status so far since your most recent admission on H1b visa, before your H1b expired, the 4 months since the H1b status expires is still less than 180 days, which means you are eligible to file I-485 now, regardless of whether your H1b extension gets approved or not.

[JoeF]

On 9/28/2022 at 1:03 PM, newacct said:

Are you immigrating in an employment-based category (EB1, EB2, or EB3)? If so, then INA 245(k) applies, which means you are eligible for I-485 as long as you have not been out of status or working illegally for more than 180 days since your most recent admission. (See 7 USCIS-PM B.8(E).) So assuming you have not been out of status so far since your most recent admission on H1b visa, before your H1b expired, the 4 months since the H1b status expires is still less than 180 days, which means you are eligible to file I-485 now, regardless of whether your H1b extension gets approved or not.

The out-of-status rule doesn't even apply here because the OP has a pending H1 petition which keeps him legal. The OP is NOT out of status.

At this point there is no problem filing an I-485.

[newacct]

On 9/30/2022 at 5:34 PM, JoeF said:

The out-of-status rule doesn't even apply here because the OP has a pending H1 petition which keeps him legal. The OP is NOT out of status.

At this point there is no problem filing an I-485.

Pending application does not give "status". If the OP were not in an employment-based category, he can still file I-485 but USCIS would have to defer adjudication of I-485 until the EOS is approved (thus granting "status" to the time when the I-485 is filed); and if EOS is denied, USCIS would have to deny I-485. (See 7 USCIS-PM B.3(E).) However, if the OP is in an employment-based category, and INA 245(k) applies, then USCIS would not have to defer adjudication of I-485, and the result of the EOS would not affect the I-485.