Dear Sajha friends,
I am kind of novice in this field. I need some answers.. please!

LC PD 03/02/06 AD 04/15/06
I-140 PD 09/07/06 AD 10/26/06

With respect to EB3, can I file I-485 now and wait till my priority date becomes current? Obviously, my birth country is Nepal. I heard that I cannot file I-485 until my priority date becomes current. If this is true, what will be my wait time to file this according to current situation. I heard the process is going little faster these days. I was under the impression that I could still file for I-485 and we would at least be eligible for EAD/ AP for now and wait until my priority date becomes current to get approved.

My H1B is expiring in June 2007. Since my I-140 is approved, I am eligible for 3 more years extension, right? I don’t have any other options than extend my H1B?

I hope Harris will reply...:)

5 years to be current !!
You should be able to extend your h1b as much as you like with extension of 1 year at time after 6 years of h1 .if you have 3 years left why are you even worried?

By the way, my 6th year H1B finishes on 06/30/2007. I think I am still not clear about my question.

My question is... My I-140 is approved. Now, should I wait to file I-485 until visa is available? Can I apply for EAD/Travel Document before I-485? My goal was to get EAD for my spouse (h4) as soon as possible. My lawyer screwed me up b/c I was eligible for EB2, but he did EB3 instead! :( Waiting for 5 years:(

Hi Sukul Gunda,

1. You can't file I-485 until the visa availability becomes current for that category. No I-485, no EAD, no Advance Parole. No EAD for spouse. Sorry for that. I was mad with the paralegal of my sister's attorney who told me that even the nursing quota retrogresses, she can apply for I-485 and get EAD. That's not true.

2. There may still be possibility to switch to EB2. PERM approval process takes only two months (after you meet all the filing requirements). This may save several years of wait. Just get second opinion from another lawyer. There may be more risks than benefits :=|

SG, you cannot file 485 until your LC PD becomes current. By how things are looking right now, it looks like you will have to wait another 4 yrs for your PD to be current. In the meantime you can apply for a 3-yr extension of H-1 based on your approved I140.

Hope this helped,
JD

Hey ,I will give you a good suggestion:

Apply again with Eb2 ..there is no harm applying twice but since you are going to be done with h1 reg time.i am not quite sure.but that was one option

You will be done in 2 years.For Eb3 is current for all other country except india and china

Thank you: ImI, Harris, and John Doe:)
I appriciate your answers and suggestions.

Sounds like I am pretty much screwed up. When you say the current priority date, should I look at LC PD? In my case, 03/02/06 ??

Sounds like I have to redo the whole process under EB2 option now, but this lawyer tells what's wrong in waiting for a few more years when I can extend H1B for 3 more years. The thing is I am sick of this H1B and its restrictions :(

One last request: can somebody direct me to right link to check the visa availability? I went through the following, but I don't think it's recently updated.

http://travel.state.gov/visa/frvi/bulletin/bulletin_2084.html

Yes, your LC determines the Priority date.
You are not screwed !
With new regulation in place things might move faster ..may be who knows :)

You are right LC PD is a priority date.

Do you mean you can extend your H1-B for 3 more years even though your 6th year H1B finishes on 06/30/2007? Hummm.. I don’t know about that. I know we can extend for one more year before 6th year H1-B expired.

I-485 is actually where you apply EAD, Travel Documents and etc too. I mean you can apply EAD, Travel Documents with I-485 but not before that.

Here are some links where you can get some info that you are looking for.

http://www.uscis.gov/graphics/formsfee/forms/i-485.htm
http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

Once your I-140 is approved but your priority date is not current, you can extend your H1B in 3-year increment. However, if your I-140 is not approved, you can get seventh year extension valid for only one year.

Just make sure you put these words in the support letter for 3 years extension of H1 based on AC21:
Request for “One- Time Protection” Under AC21 104 ( C ) :

The AC21 104 ( C ) enables H-1B non-immigrants with approved I-140 petitions who are Under §104(c) of the American Competitiveness in the 21st Century Act (“AC 21) a person under the H-1B status may work beyond the statutory six-year cap in increments of three years under certain circumstances. The provisions of § 104(c) permit a person to stay beyond the six-year period for those H-1B non-immigrants with approved I-140 petition who are unable to adjust status because of per-country limits to be eligible to extend their H-1B nonimmigrant status until their application for adjustment of status has been adjudicated and that the beneficiary must:

(a) have a petition filed on his or her behalf for a preference status under INA §203(b)(1), (2), or (3) (an employment based (“EB”) petition); and
(b) be eligible to be granted that status except for the per-country limitations.

An H-1B nonimmigrant is eligible for this benefit even if he or she has exhausted the maximum 6-year period of authorized stay for H-1B nonimmigrants under 8 U.S.C. §1184(g)(4), INA§214(g)(4).

In the case of the present beneficiary, Form I-140; Immigrant Petition for Alien Worker has been approved on .........(a copy of approval notice is attached). The beneficiary is waiting for availability of visas based on per-country limitations to file his application for adjustment of status for permanent residence as the priority date on the certified labor application is not current. The said immigrant petition is bonafide. The current H-1B visa petition for the beneficiary will expire on ................ The present petition is requesting for the extension of stay from .............to ................

GOOD LUCK

LawNepal www.santosgere.wordpress.com
ANLUS- www.anlus.wordpress.com Soon to be (www.anlus.org)
Email: nepalilawyer@gmail.com