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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