Cutting it close with filing I-485/I-130 (AOS) and expiring H-1B

[deadA1ias]

Hello everyone,

I searched the forums here as thoroughly as a I could, but could not find categorical answers to my queries; hence my first post at Immihelp.com.

So cracking on, here is my situation:

• I am a British Citizen
• I came to the U.S. on a 3-year H-1B visa
• I got married (for all the right reasons!) to a U.S. Citizen one and half years through the visa
• Didn't file for my Adjustment of Status - waited for just under a year before I even started looking at it (my own fault; I know it's not clever and I regret it) - simply relied on the H-1B to travel abroad etc.
• My H-1B and I-94 are due to expire on September 30, 2009
• I am taking the I-485/I-130/EAD/AP route to gain my permanent residency and will be filing within the week

So that's the scene, here are my questions (I hope I haven't been too verbose, just trying to be clear):

1. From my calculations, from the day I send the AOS in the mail to the day I am required to leave the U.S. (due to the H-1B expiration) will be about 68 days - is it likely that my AOS status will be "pending" within that time frame? (It is my understanding that as long as my status is pending on an I-485 I am legally allowed to stay in the U.S. - please correct me if I am wrong).
2. What constituents a pending status on the AOS, is it a Notice of Action 1, or simply my having sent in the paperwork?
3. If an NOA1 does indicate a pending status, how long does it take from the sending of the package to receiving an NOA?
4. Does a RFE come before or after an NOA? That is, if my package isn't prepared properly enough can it delay my receiving a pending status? (This is important to me as then I know how careful to prepare my package).
5. Given that I have approximately 68 days left on my H-1B, I technically have enough time to apply for an H-1B extension, but is that worth it? If the likelihood of the above AOS going through is high, is it worth spending the extra time, money and effort on an H-1B extension?
6. On the assumption that I do not extend my H-1B, my AOS is marked as pending, but my EAD hasn't come through yet (I hear that's around 90 days), how do I deal with my employer during that time frame? Simply resign from work for the month or two until my EAD arrives?
7. If I do end up having to leave the country due to my expired H-1B then what happens to my I-485 status that I just filed? Is it simply abandoned and I have to try again? Where would I even start in that case?
8. Last question I promise This is what is confusing me the most... say I leave for Canada for a while to stay legal (as there I would just be a tourist), and then say that for whatever reason all my AOS paper work is NOA'd, how do I get back in as I don't have a I-94 nor do I have an AP document. Catch-22?

I know I've asked a lot of questions here, and I also know that this problem is a result of my dragging my feet on this issue, but I'm here now and trying to resolve it as best I can. I hope I've been clear enough for accurate answers - I just want to retain legal presence in the United States. I really appreciate all the help you can give me (and have given me during my "lurking" research on this site so far).

Take care,

Matt

[txh1b]

As you belong to family based category, process can take 6 months.

http://immihelp.comhttps://www.immih...ent-of-status/

1. Correct
2. You applying for a 485 and USCIS accepting it.
3. NOA (I797C) is given as soon as they receipt the application and cash the fee.
4. After NOA (I797C), RFEs are sent.
5. You must have the H1b extended for your own safety. If there is some procedural error in the 485 and in the event of a denial, this will allow time for an appeal and you can continue to work. You can also travel on the H1b without AP. Extending your H1b is the best thing to do.
6. Yes, you cannot work without the EAD in your hand or even be on the company payroll. In case of the H1b, you can continue working while the H1b is pending if it was applied before your current stay expires.
7. You can leave the country if you want to after the Advance Parole gets approved. If not, your 485 is considered abandoned. You have to start all over with the 485 again.
8. You should not leave the country till you get a AP in hand. As an alternative, you can travel if you have a valid H1b extension and a h1b visa on your passport.

Read more about family based GC procedure on immihelp.