I-485 filing when I 140 in MTR/Appeal - Please help!

[kvkps]

My PD is current now but my I 140 is declined. My attorney planning to do MTR/Appeal. While the MTR/Appeal in pending can I go a head and file I 485 and if we get EAD, can my spouse work on EAD while waiting for I 140? Please advice.

[Belle]

I am not sure you can, and I would not recommend doing it unless you are in REALLY tough circumstances (for instance, you will become illegally present if you don't file).

[kvkps]

Thank you Belle. I have another question, My 6 years of H1 is completing in January. Would my H1 gets extended while my I 140 is in MTR/Appeal? In the denial he mentioned that my Labour is invalidated. Please suggest

[Belle]

If I-140 is in appeal, and LC was started at least a year before your H1 expiration, you may extend H1 for one year.

[kvkps]

Thank you Again Belle, your advice is a big help. My Labor is 4 years old, my only concern was the officer clearly mentioned in my I-140 denial notice that my labor is invalidated. So, you don't see any issues with that statement for my H1 extension while I am on MTR/Appeal?

[oops1975]

Yes. You can get H1 extension based on I-140 appeal. Mine was similar case. My H1 was extended bases on I-140 appeal.

[Belle]

I don't know what it means. It may mean that the period in which you may file I-140 based on that labor has passed, or it may mean something else. In any case, it ain't over if you appeal.

[Attorney_20]

Depending on the reason(s) for denial of the I-140 and invalidation of the labor, you and your employer may want to do a backup PERM case while appealing the I-140 denial.

Typically, USCIS can only invalidate the Labor when there is evidence of fraud. If that is one of the allegations in your case, it may be wise to initiate the backup case to make sure you have a basis to get the green card down the road even if this case doesn't work out.