Questions & Answers

How can I file for an H-1B extension after I receive approval on the I-485?

I am currently on H-1B with an EB-2 priority date of 2012. I plan to apply for EB-5 this year. Since I-526 and I-485 approvals will provide conditional 2-year permanent residence, can I extend my H-1B visa until I receive an approval for I-829—even after an I-485 approval? I am evaluating the risk of a denied I-829 so that I can work on H-1B. Any guidance you can provide would be appreciated.

Answers

• Charles Foster

  Immigration Attorney

  Answered on July 18, 2017

  If you have received an approval on your I-485, which provides you with Conditional Permanent Residency, there is no reason to file for an extension of your H-1B. In fact, you would want to save any remaining H-1B time so that, if you are unable to remove your conditions, you would have a basis to apply for a new H-1B visa without being subject to the cap or the 6-year limitation. Thus, I do not recommend that you file for an extension of your H-1B status.

• BoBi Ahn

  Immigration Attorney

  Answered on July 11, 2017

  Upon becoming a lawful permanent resident (i.e. I-485 approval), you can no longer maintain your nonimmigrant status (i.e. H-1B).

• Ed Beshara

  Immigration Attorney

  Answered on July 10, 2017

  Once you receive conditional permanent residency status, you cannot have a non-immigrant status.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on July 10, 2017

  After the approval of an I-485, you are a green card holder, or permanent resident, and cannot extend your H-1B. You must be an Indian national; otherwise, your priority date would be current. You cannot extend an H-1B after the approval of your green card. You can surrender the EB-5 green card and apply for another. I-829 denial rates are very low and, if you do due diligence on projects, you will only have a very slight risk. Plus, you do not lose your I-140 approval priority date so, if the I-829 is rejected, you can apply for a green card under the EB-2.

• Jinhee Wilde

  Immigration Attorney

  Answered on July 10, 2017

  You may not have more than one status at one time. If you already have permanent residency, although conditional, you may not apply for the non-immigrant visa extension. The removal of conditions is based on the actual job creation vs. what the project promised divided by the number of investors. In many successful regional centers that build in an extra cushion of job creation, I would look for at least 20% cushion. That way, the shortage of jobs will be minimized. Also, if the job numbers are based on the USCIS-approved formula and based on construction spending, for example, the jobs are created when construction finishes and the promised spending was actually spent, thereby eliminating the likelihood for denial.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on July 10, 2017

  Once you receive your conditional permanent residence, you are allowed to work. There is no further need for renewal of H-1B. In fact, until a decision is made on your I-829, your conditional permanent residence allows you to continue working. Avoid unnecessary duplication of efforts as your conditional permanent residence affords you better status than an H-1B. Advisably, consult your EB-5 attorney and work towards securing an approval for your I-829 rather than anticipating a denial.

• Lynne Feldman

  Immigration Attorney

  Answered on July 10, 2017

  This is not an option. Once the I-485 is approved, you are a permanent resident so you can no longer maintain a nonimmigrant status. If the I-829 were denied, the case is referred to Immigration Court for another review by the Judge. If you are denied or you wish to abandon your status, you can then apply for an H-1B and go overseas.

• Raymond Lahoud

  Immigration Attorney

  Answered on July 10, 2017

  You actually cannot maintain H-status and conditional lawful permanent status at the same time. Also, there would be no reason for you to change to the H-status, as you will be a conditional lawful permanent resident.