Many foreign nationals who are working on valid H-1B visas may have an approved I-140 (Immigrant Petition) and are waiting to adjust status (waiting approval of the I-485, or what is commonly known as a “Green Card”, through employment).
Applicants waiting visa availability are faced with the question of whether to renew their H-1B. Current processing times (as of June 2009) for renewal of an H-1B are 2 months from receipt.
Is Renewal Necessary with a Valid EAD (Work Authorization Card)?
Renewal of an H-1B during a pending Green Card application tends to fall into a gray area.
There are only two ways to be in the U.S., either under valid non-immigrant status (temporary visas like the H-1B) or as an immigrant, lawful permanent resident (with a green card.) Those who are “out of status” with no pending applications are clearly deport-able under section INA 237(a)(1)(C).
However, there is large gray area for those who have pending applications for adjustment of status but do not have non-immigrant status. This is the gray area that applicants fall into when H-1B status expires. how to load test a website It is unclear whether applicants who are present in the United States without non-immigrant status are in violation of law and deport-able under INA 237(a)(1)(C).
Although USCIS “policy” has considered aliens with a pending adjustment case to be in a period of authorized stay and thus not deport-able, this policy can shift and is not found in statute or regulation. Also, ICE and CBP are not bound by USCIS policy and do not follow its interpretations.
Conclusion – It is prudent to renew H-1B non-immigrant status during a pending adjustment of status case with USCIS.