Need Advice - H1b Extension

[saroja]

Name of the State : California

I need your advice on my situation. I worked for company A and they did filed the GC on behalf of me in 2004. As I got laid off from Company A, I decided to join in Company B in June 2007 and applied for my H1 transfer based on company A's GC application as I am on my 8th year of H1B extension. In the meantime Company A withdraw my GC application and for the same reason on July 12th my H1B transfer case got rejected. Luckily Company B was able to find a matching approved labor and they applied for my labor substituion on July 16th and two days back I got my I140 receipt notice too.

Today company B wants to apply for my H1 transfer again based on my I140 receipt notice and indicated that it might get approved based on counsular processing.

I am bit concerned about this. My question are

From your experience, is this a complicated case?

How safe I am with counsular processing.

And could you please let me if I am in a legal status?

Thanks in advance for any inputs.

- Saroja.

 

[ImmigAttyLana]

I don't see why it would have to be for consular processing. If the labor cert that was used to substitute you was filed at least 365 days ago, then you would qualify for the H-1B extension anyway. What I don't understand is why, if you have submitted the I-140 just a couple of weeks ago, when all the priority dates for all preference categories were wide open (and continue to be), why don't you just file the I-485 now instead of messing around with another H-1B?!

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[saroja]

Thanks for your reply. That really helps to get an idea of where I am in. Have one follow-up question.

My current labor substitution has a priority date of Aug'2001. Since it has been filed 5 years ago, does that mean, my H1B extension will go through without any problem. In parallel, attorneys are also working on applying for my I485, since the dates are current now.

All I am concerned abut is the legal status. Without a proper H1 status, could you please clarify me if, I am in a legal status now or not.

That a lot for your replies.

 

[ImmigAttyLana]

If your initial H-1B extension is still valid and you have a valid I-94, then you are in valid status. If your I-485 is being filed, then you actually don't even need an underlying H-1B once the I-485 is filed. You do need work authorization and you won't get that until about 90 days from the date I-485 is filed with the I-765 so for that interim, you would need the H-1B so I suppose you can have it filed for that purpose and use the priority date of the labor cert as the basis.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[saroja]

I have a clarification question.....My H1B extension was filed by company A last year and it is valid till Dec'2007. As I joined in company B in June'07, they filed for my H1B transfer and that got denied in July. And immediately they applied for my I-140 with a substituted labor and currently preparing documents for my I485. Since my H1B extension is valid till end of this year, does that mean I do not have a problem in valid status. Sorry to ask you again this, as my H1 transfer got rejected, I am more concerned about this and get clarified. Thanks for your help.

 

[ImmigAttyLana]

You are technically out of status with company B since you cannot be working for them if there is no underlying H-1B approval but you are not unlawfully present because you still have a valid I-94 card on the basis of the extension granted for company A.

Please let me know if you have any additional questions or how I can be of further assistance to you in this matter.

 

[saroja]

Thanks a lot for clarifying my doubt. Just wondering on what basis company B, being a big firm, is letting me to work starting from June after my H1 transfer got denied. I was under the impression that big firms do follow all the INS procedures. Could it be because they were able to immediately apply for I140 based on an substituted labor on my behalf ?

 

[ImmigAttyLana]

It probably slipped through the cracks. There is no basis for employment authorization just for filing the I-140.

 

[saroja]

Thanks a lot for clarifying all my questions. One last question.....will my current status will affect my GC or the new H1 transfer anyways ?

 

[ImmigAttyLana]

I can't really comment on this, not having the entire file to review. You should inquire with your attorney.

 

[QnA]

Filed I-485, do I still need to renew H1B?

Hi all,
I think I'm at the right place. So I'm going to ask away. I have my 8th year H1B till 10/31/07 and I just filed my I485 in August. Do I need to renew my H1B? Please advise. Thanks.

 

[ImmigAttyLana]

Only if you think that there is a chance your I-485 may not be approved or if you are still single and you might be getting married to someone abroad who might need the dependent H-4 visa.