How long can I delay in filing I-485/AOS?

[ajnabee987]

Hi,

I had a question about filing I-485/AOS. My details are below:

H1-B: Valid till July, 2014

I-140 approved

Priority Date: December, 2007

From the December, 2011 Visa Bulletin, I see that my application will become current very soon (EB-2 category current date specified as 15MAR08).

However, I am planning on getting married within the next 6-12 months and would like to have my spouse also on my Green Card application.

How long can I delay in filing my I-485/AOS without any adverse consequences (such as losing my priority date)? Is there a time limit? Please let me know.

I'll really appreciate any info on this topic!!! Thanks!!!

[Belle]

As long as you have the job offer. There is no limit.

[InTransition]

I have an interesting follow-up question to this, that a friend of mine recently asked me.

Can someone whose date is current and DOES NOT want to file I-485 (for any reason) file for H-1B extension beyond 6 years based on the pending Immigration application?

Or is it the case that you cannot file for H-1b extension if you have not filed for AOS and your priority date is current?

Thanks in advance.

(Please dont reply with questions/comments about the fact that one ought to file for AOS as soon as possible. I just want to know what the rules are in this circumstance).

[JoeF]

(Please dont reply with questions/comments about the fact that one ought to file for AOS as soon as possible. I just want to know what the rules are in this circumstance).

I don't think there are rules for such a situation (probably because nobody thought that anybody would do that...)

As far as I know, the law allows the H1 extension based on the approved I-140, no matter what. Now, I can see USCIS denying the extension because of it somewhat going against the spirit of the law. If that would happen, then a lawsuit would be the only way to get a definite rule.

[InTransition]

Thanks Joe.

It definitely seems to stretch the H-1b extension rule to it's farthest possible interpretation. However, I got asked this question recently by someone and I found it to be an interesting scenario.

[Belle]

One can get an H1 extention. The spirit of the law is that H1 is temporary visa, but if there is a belief that the employee is likely to stay permanently, it should be extended longer than 6 years. Some one who has lived in the US for 6 years and has an immgrant petition is believed to be on the road to permanent residency. They don't check for intent at that point.

[Attorney_6]

If the priority date is current, it is still possible to get the H1 extended (although in one year increments, not 3). There is nothing in the law that says the GC case has to be making appropriate progress etc.

Of course, if this were to continue for years, there could be questions/potential problems. I recall some questions/RFEs from quite a number of years ago on this issue when people started using very old GC cases from prior employers to get H1B extensions (when they had nothing else to use).

[InTransition]

Thanks Belle & Attorney

From your answers it seems like one can definitely apply for an H-1b while one's PD is current and the I-485 is not filed.

Thanks again.