CP and extension of H1-B after 6 years

[km02]

Hi,

I had applied for I-485 on Feb,2000 on EB3(PD: JUN/97) after proper medical tests etc. Somehow the files went to Chennai for Consular Processing. So I had sent the packet 3 six months back. Now the date is not current for me (EB3- JUN/97) and I am waiting. Attorney did not file for a work permit at the time of AOS.

So I am reaching my six years limit at Feb,2001. My new attorney has applied for 1- year H1- extension
( looks like the new Law do not allow this. But I have my labor cleared more than 2 years back and my date is not current, so can I extend my H1-B?)
And Work permit also (Since I have a 485 reciept, but again this may not workout since my 485 might have stopped).

What should be I do.???
1) Should I go to India and wait for some time?
2) Or wait for new H1-B or work permit?
3) Even if I get new H1-B or will EAD Chennai people create problem saying I was illegal in USA?

Immihelp and other Immigration experts please advise.

Thanks in advance
km

[km02]

Hi,

I am realy sorry if I confused you. This is will explain some confusions about previous posting.

My details:
----------

Labor certification: Started Jun/97 EB3 Regular and Completed after 19 months
I-140 : Completed Nov,99
I-485 Reciept date : March 3rd, 2000

Got letter from NVC saying my file went to Chennai for CP in July, 2000

Filed packet 3 : October, 2000
H1-B expiring on : Feb, 10, 2001
Priority Date : EB3, JUN/1997

Attorney thinks that since I had filed for AOS( which became CP) I cannot extend my H1-B.

But I feel what since my Labor and I-140 was done more than 365 days and my date is not current I can extend my H1-B after Feb, 2001.

Even some immigration sites says the new law is not applicable for CP. I am really confused.

I believe attorney has already files for H1-B extension and also for EAD (using my I-485 reciept, but EAD will not come before Feb, 2001).

Which path I should follow?

Any ideas?

Thanks
km

[bd850]

CP

km02..this is confusing. in my situation my husband's 6 yrs. is over in April 01. Since we are doing CP we were told by our attorney that he cannot extend his H1 even though his I-140 took more than one year to get approved. This issue has still not been clearly interpreted by INS. So thats my understanding of the 6 yr. law.
Secondly, you said that you filed 485. Now this is confusing since one cannot file I485 if the PD is not current. So how could you have filed for your I485?
Thirdly, in any case once you file I485 you can legally stay in this country but if you dont have EAD then u cannot work.
Its not clear how INS could have issued you a receipt for your 485 and at the same time sent your papers to Chennai for CP.. though anything is possible with INS

If your attorney has filed for H-1 extn. & EAD and it comes thru' and if he feels that you will still be legal, then I guess its fine; otherwise you may have to leave the country till your dates become current and your CP interview comes through.
In any case, the silver lining is.. NVC will usually process a case when they "think" that the PD is about to become current. Since currently EB3 is March 97 maybe in the next month or so your PD may become current. So dont take any chances with your status right now.
Hope this helps... All the best...
Thanks
This is not legal advice....

[km02]

Hi,

Thanks for the help.

My PD was current during Dec, 1999 - April, 2000(when everything was current). During that time I filed for 485.

How the file went Chennai for CP is still not clear.

BTW the new PD for EB3 is still May 1, 1997
(I got it from Madras consulate site)

Thanks
km

[bd850]

CP

km.. Technically if you file 485 you can legally stay in the country till your GC comes thru. If you dont have EAD then you cannot work.

As per the law, 485 is considered abandoned if you apply for CP. Hence, the moment you sent out your Pkt.3, your 485 would've legally been considered abandoned. So now when your lawyer applies for EAD, it may or may not get rejected. If it does get rejected, then its a clear case that you can only do CP. If your EAD comes through, then it means your 485 is still alive. Your attorney can then decide how to cancel your CP and if that is legal.

This is a case that has been messed-up. But do go by your attorney's advice. If he suggests that you leave the country and wait for CP, then thats what I would do. Dont do anything to jeopradize your status now.

I know this is not of much help... but hopefully your attorney will be able to find a way out for you. To be on the safe side I would also talk to another attorney...
Thanks

[meenu]

Hi,
Sorry for asking you a question. But one statement puts me in a confusion. Which immigration web sites explain that CP wishers can not extend their H1-B status in 1 year term after 6th year if their PD has not become current.

Thanks

Meenu
:eek

[km02]

Hi,

Thanks for the input.

Here is the one I discussed about CP and H1- extension.

5. Lately, consular processing at most posts has been faster than adjustment of status at most service centers. Does this legislation nevertheless make adjustment more desirable than consular processing?

AC21 gives some advantages to people in adjustment of status over people in consular processing, but at least one of the law's benefits may be useable in either context:

The section 104(c) extension beyond the sixth year for individuals with employment-based immigrant petitions filed but priority dates not current appears to be available only in the context of an adjustment of status.

The section 106(a) provision for extending H-1Bs beyond the sixth year when permanent residence processing has taken too long can be read to apply whether the individual pursues adjustment or consular processing, since one can become eligible for its benefits if the petition has been filed. But there is no assurance that INS and the State Department will read this provision to apply to consular processing cases.

Another advantage to the beneficiary of adjustment over consular processing is that the AC21 section 106(c) permanent residence portability provision specifies the filing of an adjustment of status application as a prerequisite for eligibility, and thus appears not to apply to persons in consular processing. Under this provision, someone whose adjustment application has been unadjudicated for 180 days or more can change jobs and/or employers if the new job is in the same or a similar occupational classification as the one for which the petition was filed. (Note that this portability provision does not apply to beneficiaries of EB-1 extraordinary ability petitions, most likely because Congress assumed that such petitions already are portable.)

Thanks
km