One of the ways that foreign workers obtain U.S. green cards is through employer sponsorship. This means that a U.S. employer demonstrates to U.S. Citizenship and Immigration Services (USCIS) that it intends to offer the foreign worker a full-time and permanent position (and the foreign worker intends to accept this position). In terms of procedures,, the employer will need to file a visa petition on Form I-140 with USCIS.
Typically, foreign workers are already in the U.S. and working for the employer on a temporary visa when the employer files the I-140 petition. The foreign worker may be here in any number of statuses, one of the most common being H-1B.
Maintaining lawful immigration status is critical for any foreign national, but it becomes especially important when applying for a green card. To apply for the green card, the foreign national must submit an I-485 petition to USCIS. Usually, the foreign worker submits the I-485 after USCIS has approved the employer’s I-140 (though in certain circumstances, the foreign worker can submit the I-485 along with the employer’s I-140 petition, called concurrent filing).
This article focuses on the consequences of applying for a green card after your H-1B status expires. We explain the possible implications of filing after the expiration of your status for both your green card and your future status in the United States.
When you file an I-485 application, you are asking USCIS to approve your request to adjust your status from H-1B to that of a lawful permanent resident. However, you can adjust your status only if you are already in status. Therefore, if you are not in status when you file the I-485, USCIS will likely deny it.
Because the timing of the filing of your I-485 is very important, it is critical to understand when your H-1B status expires and when your I-485 application is considered "filed."
Your H-1B status expires on the date provided on your Form I-94 Arrival/Departure Record. If you entered the U.S. in H-1B status prior to April 2013, the port of entry officer who inspected you provided you with an I-94 card that you should have stapled into your passport. If you changed your status to H-1B while you were in the U.S., your I-94 card will be at the bottom of the USCIS approval notice. Beginning in April 2013, the majority of nonimmigrant visitors to the U.S. will no longer receive a paper I-94. If this applies to you, you can check your status expiration by accessing your I-94 from the Customs and Border Protection website.
For example, let’s say you entered the U.S.on May 1, 2012, in H-1B status. You received an I-94 that stated your H-1B status is valid until April 30, 2015. Your H-1B status expires on April 30, 2015, and you must either leave the U.S. or apply to extend your status or change your status, by that date.
Please note that the date the officer notes on your I-94 should be the same as the validity date USCIS put on your H-1B approval notice. If these two dates are different, the I-94 date given to you last in time GOVERNS the validity of your status. Therefore, if the officer made a mistake and gave you an I-94 date of April 30, 2013, that becomes the new date on which your status expires -- regardless of the date listed on your approval. (Always double check the date on your I-94 to avoid any status duration issues.)
Now that you know when your H-1B status expires, it is also important to understand when USCIS considers your I-485 application “filed.” This is the day that USCIS receives the application -- NOT the day you mail the application to USCIS. For example, if you mailed your I-485 to USCIS on May 1, 2013, but USCIS did not receive it until May 4, 2013, USCIS considers May 4, 2013 the date that you filed your I-485.
These dates are very important in the context of your H-1B status. Filing the I-485 application will, on its own, give you lawful status in the U.S. as long as you were in status when you filed the application. Let’s look at an example to illustrate this important concept.
Say that you are a Russian national in the U.S. in H-1B status. Per your I-94, your status expires on October 1, 2014. You mail your I-485 to USCIS on September 1, 2014, and USCIS receives your application on September 5, 2014. Because USCIS received your I-485 Application before your H-1B status expired, you are considered to be in status even after your H-1B expired, for as long as your I-485 is pending with USCIS. (If USCIS approves your I-485, your status automatically changes to lawful permanent resident. If USCIS denies your I-485, your status automatically terminates and you fall out of status).
As you can see, it is critically important to maintain your H-1B status while applying for your green card.
If your H-1B status has already expired, USCIS may still allow you to extend your status under U.S. immigration regulation 8 C.F.R. Section 214.1(c)(4). This gives USCIS the discretion to approve a late extension petition if the beneficiary (you) meets the following four criteria:
For a detailed discussion on extending your status after its expiration, please see our article on "How to Apply for an Extension of Your H-1B Visa."
If, after consulting with an immigration attorney you feel that you may be able to extend your H-1B status despite its expiration, it is typically recommended that you do so before filing the I-485. Remember, you have to be in status to adjust status, so it is always critical to apply for your green card while you are maintaining legal status in the United States.