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kaylaKo

expiring h1b visa

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a friend of mine has an expiring h1b visa on october 2017, has AOS pending from (F2A petition) with November 2015 as priority date.. Sadly, she can't renew her h1b because this year will be the 6th(max). With the visa bulletin moving very slowly, she's afraid that her h1b visa will expire before the AOS gets approved. The question is should she maintain a valid visa in the US?

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She can stay but she will not be in status. And she can't AOS if she is not in status. It is what it is.

 

If she wants to wait and stay without being in status for over a year that is her decision. She won't be able to do anything until then.

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2 hours ago, kaylaKo said:

Can't she stay in US even with pending AOS? Her spouse is eligible for citizenship on Jan 2018..

Legally, no.  She'd be out of status and at risk of being subject to deportation if she runs into legal trouble. 

Being eligible for citizenship is not a status. 

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Wait, she already has pending AOS so why is everyone saying that she cannot adjust status?

 

How can you have a pending AOS without already having filed the I-485 to adjust status?

 

If she in fact has pending AOS then she can extend the H1B beyond 6 years or work/travel with EAD/AP. No non-immigrant status is required but it's a good idea to maintain H1B until the underlying petition (I-130 in this case) is approved. 

Edited by randomstairs

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On 1/1/2017 at 5:23 PM, Boiler said:

You can not adjust status if you have no status to adjust from.

Of course you can. If your AOS is pending (I-485 filed) you adjust status when it's approved (and become LPR). Now, whether you can file for AOS with no status is a different question. No?

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Jesus people.  READ and get some facts before you post.  This is no different from someone adjusting off a tourist visa or the VWP.  Go read the policy that was implemented in 2015 and the recent Visa Bulletins.

 

Your friend's wife is fine.

 

AT THE TIME of filing for AOS, she was of legal status and was eligible to file for AOS.  AOS puts her in a period of authorized stay until her case is decided.  She does not need to get another visa.

 

 

Edited by aaron2020

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12 hours ago, aaron2020 said:

Jesus people.  READ and get some facts before you post.  This is no different from someone adjusting off a tourist visa or the VWP.  Go read the policy that was implemented in 2015 and the recent Visa Bulletins.

 

Your friend's wife is fine.

 

AT THE TIME of filing for AOS, she was of legal status and was eligible to file for AOS.  AOS puts her in a period of authorized stay until her case is decided.  She does not need to get another visa.

 

 

Thank you for clarification aaron2020. Hopefully, the visa bulletin will move faster.

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Obviously once your AOS is pending you are lawfully present and can utilize EAD/AP for work/travel without restrictions. OP, are you sure that your friend's I-485 has been filed? There is one PD for filing and another for final adjudication. If it has been filed, like I said above, no worries. If it has NOT been filed then that's a totally different issue. 

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