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Q I have been working in the U.S. for almost three years on a valid H-1B visa. My employer has filed for my H-1B extension for an additional three years. If my current status expires before the approval for my extension arrives, am I legally allowed to work during that period?

A If person is lawfully employed under A-3, E-1, E-2, G-5, H-1B, H-2A/B, H-3, I, J-1, L-1, O-1/O-2, P-1/P-2/P-3 or R status, or nonimmigrant visa under INA §214(e) (NAFTA) and files timely application for extension consistent with 8 C.F.R. §214.1, he/she is automatically given 240 days from the date of his/her status expiration. Thus, you can legally continue to work while your timely filed H-1B extension is pending adjudication.

Q I entered the U.S. in January 1998 on H-4 visa. My status was changed to H-1B in March 2000. My company filed an RIR labor certification on my behalf in April 2001. The RIR labor certification was transferred to the DOL Regional Office in January 2002. In the meantime, my sixth year on H status will expire in January 2004. How can I legally remain in the U.S.?

A According to the recently enacted Public Law 106-313, as long as 365 days have passed since the filing of a labor certification application or an employment-based immigrant petition (that is filed on behalf of the foreign national), that foreign national’s H-1B status can be extended beyond the six-year maximum period, in one-year increments.

Q If my labor certification gets approved after my company files my seventh year H-1B extension, will my H-1B extension still be valid?

A Yes

Q If my LC is approved anytime between now and June 2003, I plan to file my I-140/I-485 immediately. However, by that time, my I-140/I-485 would not have been pending for more than a year. Will I be eligible for the seventh year H-1B extension?

A Yes, Public Law 106-313 requires the passing of 365 days either after filing of the labor certification or the I-140, not both.

Q I also want to visit India for three weeks in July 2003. In case my LC is approved by then, should I file for I-140/I-485 before going to India, or wait till I get back?

A If you are in valid H-1B status and have a valid H-1B visa, you can file your I-140/I-485 at any time after obtaining your labor certification approval.

Q I came to the U.S. on a fiancée visa (K-1), got married and applied for the adjustment of status (AOS). I got divorced after a few months and went to the AOS interview alone. My AOS application was denied. Since then, I got remarried to another U.S. citizen. Can I apply for AOS again?

A K-1 visa applicant is granted his/her fiancée visa in order to enter U.S. solely to conclude a valid marriage with the U.S. citizen petitioner and must marry the petitioner within 90 days after his/her entry. K-1 visa holder cannot change his/her status or adjust his/her status based on grounds other than marriage to person who filed K-1 petition.

Law Offices of James E. Root with offices in LA and Orange County. (800) 474-9960.

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