What if I have an H1B and ... Part 2 (of 2)

The USCIS list of FAQs for Individuals in H-1B Nonimmigrant Status include four scenarios that are specific to H1B workers, but the remaining five fact-patterns listed are designed to address the concerns of H1B workers but they could apply to certain other nonimmigrant statuses. In [], the first four scenarios were reviewed, and if you are starting with Part 2, I highly recommend reading Part 1 also! The five (5) other separate but equally important fact patterns that anybody in (or hoping to be in) H1B status should be aware of are as follows!

It's Here! The Priority Date is Finally Current!

We start with the scenario when you're the H1B worker, your I-140 Petition is approved and the Priority Date is current. Finally! This means that you can file the I-485 Application with USCIS (assuming, of course, you are in status and present in the US) based on the I-140 Petition. This is what you have been dreaming of!

It is important to remember that when the priority date is current you can only qualify for H1B extensions of 1 year at a time and with (of course) the petition or the underlying Labor Certification having been filed at least 1 year prior. A rule provides that if your Priority Date is current for one continuous year, then you would lose your eligibility to extend your H1B status.

Is there any exception? Of course! You just need to show USCIS that the reason you did not file the I-485 Application was due to extraordinary circumstances.

POAS Protection Scheme

This situation describes what happens when someone is in H1B status and then decides to move to another status. This could be an I-539 Application requesting a change of status to B-2, F-1, or even H-4.

The big question that (potential) clients ask is what happens if my H1B expires before the change of status request is still pending. The short answer is:

When you file an I-539 Application requesting a change of your status and USCIS gets it before your status expires, while that application is still pending you are lawfully present in the US. Once you pass the expiration date on your I-94 Card, then you are not in "status" but in POAS (Period of Authorized Stay).

It is important to remember when you file the application to change your status, you put down in the form a start date that is no later than the expiration of your approved status.

You Know it When You See it...? Really?

The Compelling Circumstances EAD Card is the kind of thing that USCIS has talked about a lot but the message they release doesn't really carry through in practice. This is one of the suggestions on their list of what do you do when you're laid off. Yet too many times have I seen or heard that USCIS says, sorry, that's not compelling enough.

I believe that the biggest misconception or misunderstanding of the CC EAD Card is that it's just an EAD Card. It gives you permission to work and because of it you can stay in the United States, but you cannot travel. If you leave the US you are not getting back inside without an actual visa based on a status. The CC EAD Card exists to give people in qualifying circumstances the ability to remain in the US to take care of and address their pressing need.

Am I on EAD? No, You're on a Pending 485

The only way to know that you are lawfully present with a pending I-485 Application is the Receipt Notice. The receipt does not have an expiration date because USCIS has no idea when they will make a decision. In this scenario, if you have a pending I-485 Application and not H1B status you are in POAS. Yes, just like the POAS you find yourself in when you file a change of status to switch from H1B to something else.

The EAD Card lets you work and the Advance Parole gives you permission to travel. Warning! If you leave the US without an Advance Parole valid for your return, then your I-485 Application can be deemed abandoned. However, no that does not meet the I-485 Application is automatically denied. USCIS will generally issue a Notice of Intent to Deny asking what happened and telling you to prove - if you can - that you did not actually abandon your I-485 Application.

Home at Last! You Got the Green Card

Last but certainly not least in importance is getting the Green Card, with USCIS approving your pending I-485 Application.

This is really the final stage of life as an H1B worker because once your I-485 Application is approved, you are a Permanent Resident. You have a Green Card. You do have legal responsibility as a Permanent Resident, but they are different from someone in H1B status.

Conclusion - H1B Worker Lifecycle

The ideal lifecycle of an employment-based immigrant to the US starts with being eligible for just 6 years of H1B time and concluding with the Green Card.

The chart posted by USCIS makes it all look relatively simple. And it might just be simple for some people. It is highly complex and fraught with challenges of various types for many people. It's key to any immigrant's success in building a new life in the US to be cautious and talk to a good lawyer for advice! This part (like Part 1) is not legal advice. And since some people might say this is attorney advertising, I am going to tell you to contact the lawyers at Murthy Law Firm : U.S. Immigration if you want good legal advice whether it seems simple to you or highly complex.