I Want To Know If I Can Legally Remain In US After My H-1B Expires

Dr. William:

I have sent my I-140 application to INS on July 2002 based on Outstanding Researcher. At the end of January of 2003, I got "Request for additional evidence" notice from INS. But my H-1B will expire in the middle of May, 2003 after six years. 

Now I am preparing the additional evidence, but I am not sure I could get the final decision from INS before my H-1B expire date. I want to know if I can legally remain in US after my H-1B expires in the middle of May 2003 due to my I-140 pending?


Answer:

Sections 106(a) and (b) of AC21allow for additional extensions in one-year increments after H-1B 6 year limit, if:

1)  the immigrant petition Form I-140 have been filed and its priority date is at least 365 days prior; or

2) an employment-based Immigrant Visa Petition approved (Form I-140 for EB1, EB2 or EB3; I-360 for EB4; I-526 for EB5) and the I-485 application is still pending.

For your case, the priority date is less than 365 days, and you are not in  I-485 application stage. So you are not qualify for one-year extension after H-1B 6 year limit. If your H-1B expires, it is not legal in US even the I-140 is pending. What you can do is to get the I-140 approval as soon as possible, and then file I-485 application and one-year extension before your H-1B expires, if the time is available.

 

     

 

 

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