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What are the benefits of an H-1B extension with a pending I-485?

I am waiting for my I-485 to be approved through the EB-5 program. Currently I am on an EAD and H-1B status. I am maintaining my H-1B status throughout the EAD. My H-1B expires in May 2016. I am in the 6th year of H-1B and my I-140 (EB-2 India) is approved. What are the benefits, if any, of extending my H-1B in both scenarios: if my I-485 is approved and I get the conditional EB-5 green card, or if I do not get approved for the conditional green card?

Answers

  • Avatar

    Jimena G Cabrera

    Immigration Attorney
    Answered on

    Unless you have previous violations of the U.S. immigration law or something that your lawyer may think is an issue in your application to adjust status, I do not see any benefit.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are able to extend your H-1B based upon the AC21 rules and your employer is willing to continue to sponsor you, then I would recommend doing it. There is no downside in keeping your H-1B status and it may be important later if you need to show that you are in nonimmigrant status, as opposed to merely being in a period of authorized stay (based upon your pending I-485). In order to adjust status in the United States under INA Section 245(a), you must show that you are in a valid nonimmigrant status (not just legal) in the United States. If your I-485 is denied for some reason (i.e., I-526 revoked or some technicality with respect to your I-485 eligibility than can be cured only by refiling the I-485) and then you have to resubmit an I-485 once your EB-2 becomes current, you cannot do it unless you keep your H-1B status valid. If your present I-485 gets approved, which is the most likely scenario, then you do not need your H-1B.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    Do not go out of status. Until the I-485 is approved, you will not be able to work without the EAD on the H-1B. You can continue to work while the I-485 is going through the adjudication process. So, if it is approved, you are good to become a conditional lawful permanent resident. If it is denied, then you are still in H-1B status.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It is for abundance of caution that we advise our clients to maintain their current status until they are adjusted. However, in your case, since your I-526 has been approved and it has been more than 2-3 months since filing the I-485, I think you should be adjusted by May. As you are already on your 6th year extension on H-1B, there is not much reason to extend that.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The advantage is if your I-485 is denied, for example because you have unauthorized employment, then you have a safety net to catch you. If there are zero issues of status or inadmissibility, you may not need to maintain the underlying status.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You should definitely consult an immigration attorney to review your full U.S. immigration history and goals, including your current and pending status and petitions. These details will be very important in developing approvable strategies for your immigration processes.

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    Ian E Scott

    Immigration Attorney
    Answered on

    You have to have a valid status while in the United States waiting for the I-485 to be approved. Extending the H-1B extends your status.

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    John J Downey

    Immigration Attorney
    Answered on

    It would be best if when your I-485 interview is scheduled, you are in the United States in legal status. That way your interview is held in the United States otherwise you would need to be interviewed at the U.S. consulate in India. More time and red tape.

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