Many of our readers have asked if it is necessary to maintain oneís H-1B status if he/she has a pending adjustment of status application.
A pending adjustment application entitles the applicant to file for interim benefits such as employment and travel. Why should one go to the expense of extending his/her H-1B status if the above H-1B benefits are already available to the adjustment applicant?
There are substantial benefits to maintaining an H-1B status. The pending adjustment application authorizes the applicant to remain in the U.S. and work, but if he/she is laid off or terminated, the adjustment application may be denied and he/she may be forced to leave the country.
Upon denial, he/she may not be able to file an H-1B extension or change of status because he/she would have already incurred a long period of unlawful presence.
On the other hand, if he/she is in valid H-1B status, it is possible to file a new petition before a significant gap of employment occurs.
There is an exception to the rule that termination of employment will invalidate the application. Under the portability rule, if an adjustment of status application has been pending for more than 180 days, the employee may move to another employer and work in the same or similar occupational classification
But what happens if the adjustment application is denied for other reasons such as failure to submit a required document? Upon denial, the applicant will be considered as being unlawfully present in the U.S. from the time the H-1B expired.
As an example, if a physical therapist, occupational therapist or medical technologist files an adjustment application without a visa screen certificate, the USCIS will accept the application and may issue a work and travel permit.
But the applicant will receive an RFE (Request for Evidence) requiring him/her to submit the visa screen certificate within a certain period of time.
Visa screen certificates are not easy to get. The applicant must pass a verbal and written English test and submit a validation of all his/her licenses and registrations. Most of the time, the process takes over six months.
If the visa screen certificate is not submitted on time, the application will be denied and the applicant will then be considered in unlawful status from the expiration date of his/her H-1B.
The adjustment application may be resubmitted upon obtaining the visa screen certificate but it will be denied if he/she has been in unlawful status for six months or more. He/She may have to depart the U.S. but will be subject to the 3 year/ 10 year bar.
To avoid exposure to the above risks, it is advisable to maintain oneís H-1B even if an adjustment of status application is pending.
Editorís Note: REUBEN S. SEGURITAN has been practicing law for over 30 years. For further information, you may call him at 212 695 5281 or log on to his website at www.seguritan.com