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  • Can I work ?

    Hello.I applied to extend my tourist visa a few weeks before my I-94 expired. So I am a pending I-539 until Immigration decides this case. I have a job offer now but I have no idea if my employer can apply for an H-1B while my extension is pending. Could they petition my work visa while I'm on pending status? Any comments or suggestions will be appreciated.

  • #2
    Hello.I applied to extend my tourist visa a few weeks before my I-94 expired. So I am a pending I-539 until Immigration decides this case. I have a job offer now but I have no idea if my employer can apply for an H-1B while my extension is pending. Could they petition my work visa while I'm on pending status? Any comments or suggestions will be appreciated.

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    • #3
      your i-539 preserves your lawful status but you cannot stay in the US more than a year other wise 3 year ban. you can start you h1-b while you are waiting for your i-539 approval. you cannot work until you get an approved h1-b.

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      • #4
        Thank you alannbert. My prospective employer's concern is whether my H-1B can be approved while I'm a pending case. You say a pending I-539 preserves my lawful status however my I-94 expired while my application for extension is being studied by INS. The company's lawyer said he needs to consult if they can approve the H-1B under that situation because in that case, it will not be considered a change of status. I guess he doesn't really know. What do you think ?

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        • #5
          you ca attach your i-94 copy to your h1-b application together with your notice or receipt copy from your 1-539 application. i cant remeber if h1-b application require i-94. i need to get back on you on that one if ever.

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          • #6
            Yes the H-1B requires the I-94 number and copy. I can attach a copy of my INS notice of action for the I-539 too. Thanks for your help.

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            • #7
              There may be a problem. If approval of I-539 comes after I-129 (H-1B) approval, it will invalidate H-1B status and revert you back to B status. You can try to avoid it by withdrawing I-539 petition as soon as I-129 is approved.

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              • #8
                an i-539 and an 1-129 application are treated seperate. while you do your 539 to extend your stay, you may also do a 129 to change visa. an approved 539 has nothing to do with the 129. to be sure contact ins customer service number poset at www.ins.usdoj.gov

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                • #9
                  I just talked to my prospective employer and the reason why they're concerned is because last year they filed an H-1B for someone in the company who had been waiting 4 months for a B2 extension. I just talked to her and she said her H-1B was approved about a month before the I-539. She left the US, got her passport stamped with the H-1B and they cancelled her B2 visa.

                  I think alannbert is right. According to INS the issue is when the I-539 was filed and not when it is approved. If the I-539 is approved afted the H-1B, the H-1B becomes a change of status (from B2 to H1) the day it was approved. That's what INS said but they do things different from what they say.

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                  • #10
                    the situation of immigrants is very frustrating as they continue to keep up and stay within the legailites of the immigration law, which change like the wind. we can only do what we are told. so we should just file 539 to extend stay, 129 to change status and hope that no complication arise out of the process because the reality is, we cannot do nothing since our faith is on the hands of people who dont care about us, most of the time.

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