H1B Visa expired and PERM in process

[Snkn_0311]

Hi,

Below is my current visa situation and i have some follow up questions. Greatly appreciate any help in answering these questions please.

- My H1B Visa is expired on Dec 20, 2020 and my employer has filed for PERM which is still under process waiting for PERM approval. PERM was filed in July 2020.
- My spouse's i140(EB2) is approved and has a valid H1B visa. His employer had filed for i485 and EAD by downgrading from EB2 to EB3 when the date was current in October 2020. My i485 was also submitted along with that.
- Immigration Attorney suggested I can stay in US While waiting for my PERM approval since my AOS is in pending state (i485 filed along with my husband as primary applicant ).
- But yesterday(28th Jan 2021) we received a rejection notice for i485 stating the payment fees are incorrect.
Below are my questions :-

1) Can we re-submit i485 application ?
2) The duration between Dec 20 , 2020 when my H1b expired and the date we got rejection for i485 (28th Jan 2021) , will that be considered as out of status for me or its a valid pending AOS ?
3) Is there any other wise option to take at this point of time to avoid travel out of country ?
4) Also Can i file H4 being in US using my husband's approved i140 for EB2 ? Will that be considered as change of status ?

[rkk09]

Hi Member,

1) Can we re-submit i485 application ?
Answer: Yes. You can reapply with certain procedures.. Need to have discussion with Immigration Attorney before take action on this.

2) The duration between Dec 20 , 2020 when my H1b expired and the date we got rejection for i485 (28th Jan 2021) , will that be considered as out of status for me or its a valid pending AOS ?
Answer: It will not be if you would have left the country the moment you heard the news or seeking for alternative visa status immediately.

3) Is there any other wise option to take at this point of time to avoid travel out of country ?
Answer: You should have filed change of status petition but we dont know how USCIS will react on the petition.

4) Also Can i file H4 being in US using my husband's approved i140 for EB2 ? Will that be considered as change of status ?
Answer: Yes. You can file H4 petition while you are in the USA. At this moment you would have got the status and share your current status too.

Thanks