H-1B Extension Pending, Recently Married

[h1btogreencard]

Thanks in advance for anyone that can help! Here's the scenario:
-My Wife/Company filed for extension to H-1B (I-129) within time frame before H-1B expired (9/1/16)
-USCIS notified company it received application. Has not made a ruling yet
-Expiration date 9/1/16 goes by, still no status update from USCIS
-9/29/16 Wife and I have wedding, get married
-I am a U.S. Citizen who can petition for my wife

Questions:
-Should my wife and I file for an Adjustment of Status (I-485/I-130 concurrent filing) for a greencard, while her H-1B is expired, but pending a decision from USCIS?
-Or should we wait until a decision has been made by USCIS, then file AOS

From what I read, if an H-1b extension has been received by USCSIS in a timely manner before expiring, and the H-1B expires, the applicant has up to 240 days to legally work and stay within US, until USCIS makes a decision. We're optimistic that she well get the extension approved, but wanted to know if it was possible to do an AOS when her VISA status has expired. Thanks again!

[raghvi]

Thanks in advance for anyone that can help! Here's the scenario:
-My Wife/Company filed for extension to H-1B (I-129) within time frame before H-1B expired (9/1/16)
-USCIS notified company it received application. Has not made a ruling yet
-Expiration date 9/1/16 goes by, still no status update from USCIS
-9/29/16 Wife and I have wedding, get married

Questions:
-Should my wife and I file for an Adjustment of Status (I-485/I-130 concurrent filing) for a greencard, while her H-1B is expired, but pending a decision from USCIS?
-Or should we wait until a decision has been made by USCIS, then file AOS

From what I read, if an H-1b extension has been received by USCSIS in a timely manner before expiring, and the H-1B expires, the applicant has up to 240 days to legally work and stay within US, until USCIS makes a decision. We're optimistic that she well get the extension approved, but wanted to know if it was possible to do an AOS when her VISA status has expired. Thanks again!

Have you got an approved I140? Is your priority date current?

[h1btogreencard]

No since she is filing to extend as a non-immigrant worker, the company used a i-129 instead of a i-140

[raghvi]

No since she is filing to extend as a non-immigrant worker, the company used a i-129 instead of a i-140

You probably have misunderstood the process. I485/I130 is filed post filing of your Green Card under an EB category and I140 being approved.

A very simplistic way of looking at the visa: H1 is a non immigrant visa, EB1/EB2/EB3 is an immigrant visa. H1 is filed using I129, EB1/EB2/EB3 is filed using I140.

This is my opinion not legal advice.

[h1btogreencard]

You probably have misunderstood the process. I485/I130 is filed post filing of your Green Card under an EB category and I140 being approved.

A very simplistic way of looking at the visa: H1 is a non immigrant visa, EB1/EB2/EB3 is an immigrant visa. H1 is filed using I129, EB1/EB2/EB3 is filed using I140.

This is my opinion not legal advice.

Thanks for the explanation although I think we may be talking about two different scenarios. Maybe I was unclear with explaining the situation. My wife is currently in the US, under an H-1B visa, where she submitted a I-129 form to extend for another 3 years. During that time, we got married. Also during that time, the visa expired but the application was still pending a decision from USCIS. It was my understanding that if a non-immigrant with an H-1B visa gets married to a U.S. citizen, in order for them to adjust status to a permanent resident, they would have to get a I-130 petition by the U.S. citizen, and submit a I-485 to adjust status from non-immigrant to Permanent resident.

I recieved that information here "https://www.uscis.govhttps://www.immihelp.com/greencard-decoding-characters/green-card-through-family/green-card-immediate-relative-us-citizen#inside" and here "https://www.immigrationdirect.com/immigration-articles/index.html%3Fp=3190.html". Everything that I've read so far says that submitting a I-130/I-485 concurrently is the first step.

The question I'm trying to have answered is, should we file the I-130/I-1485 while we wait for USCIS to approve/reject the I-129 extension, or wait for USCIS to approve/reject, then apply. I've heard different things about whether or not that is good or bad. Some say to go ahead and file, others say, since the application is pending and her status is in flux, that they will deny the I-130/I-485 until it is resolved.

[raghvi]

Thanks for the explanation although I think we may be talking about two different scenarios. Maybe I was unclear with explaining the situation. My wife is currently in the US, under an H-1B visa, where she submitted a I-129 form to extend for another 3 years. During that time, we got married. Also during that time, the visa expired but the application was still pending a decision from USCIS. It was my understanding that if a non-immigrant with an H-1B visa gets married to a U.S. citizen, in order for them to adjust status to a permanent resident, they would have to get a I-130 petition by the U.S. citizen, and submit a I-485 to adjust status from non-immigrant to Permanent resident.

I recieved that information here "https://www.uscis.govhttps://www.immihelp.com/greencard-decoding-characters/green-card-through-family/green-card-immediate-relative-us-citizen#inside" and here "https://www.immigrationdirect.com/immigration-articles/index.html%3Fp=3190.html". Everything that I've read so far says that submitting a I-130/I-485 concurrently is the first step.

The question I'm trying to have answered is, should we file the I-130/I-1485 while we wait for USCIS to approve/reject the I-129 extension, or wait for USCIS to approve/reject, then apply. I've heard different things about whether or not that is good or bad. Some say to go ahead and file, others say, since the application is pending and her status is in flux, that they will deny the I-130/I-485 until it is resolved.

Now, it makes sense. Earlier posts never indicated that you were a US citizen. I dont see a concern in applying for I130/I485 as logn as she entered the US legally on a valid visa.Overstay is generally ignored for spouses of US citizens.

This is my opinion not legal advice.

[JanAtlas]

Now, it makes sense. Earlier posts never indicated that you were a US citizen. I dont see a concern in applying for I130/I485 as logn as she entered the US legally on a valid visa.Overstay is generally ignored for spouses of US citizens.

This is my opinion not legal advice.

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