I have an approved I-140 and Pending I-485 and I didn't know that I have to have an EAD so I never got one, when my H-1b expired my lawyer says its optional to renew it so I didn't renew it, then when we got the rfe for the I-485 we discovered that so we filed an H-1B NUNC PRO TUNC to accommodate the period I had no authorization, the H-1B was approved for only one year not 3 and for consular process not change of status, my question is can I file to reconsider with an expedite request? my lawyer says there is a difference in law between the one who worked without authorization before the filing of the I-485 and after. I am not sure how true is this and can this be used for the I-485 to get it approved ?
Working without authorization is a problem, for an employment based I-140/I-485, regardless of whether it is before or after filing the I-485.
The above is intended only as general information, and does not constitute legal advice. You must speak with an attorney to discuss your individual case.
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I80 days unauthorized employment prior to filing the I-485 ... the nunc pro tunc might save you ... but it will probably boil down to someone at CIS in Nebraska (or wherever) making the decision.
Your lawyer sounds competent and is correct when he/she states there is a difference in when/how to count the 180 days.
I suggest that, even if you don't like the situation, you should continue to listen to him/her.
Plus, consular processing, in my mind, is cheaper and better than adjusting status.
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Unauthorized work will damage your gc petition no matter when it happened. I would recommend you go outside the country- after getting an advance parole, getting the H1 stamped and returning. Otherwise apply for a EAD and do not work till you receive it. You can also consider appealing the H1 COS denial and proving extraordinary circumstances to get the H1 start date changed to an earlier date. The last is the what I would recommend.
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It is a problem. If you worked without authorization over 180 days, generally, you are not eligible for adjusting your status in the U.S.
This answer is of a general nature and should not be relied upon as final, nor is it intended as legal advice. Consult with a qualified attorney before making any legal decisions. Gen Kimura, (832) 247-6932.
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Working while unauthorized can render you ineligible for an extension of your H-1B status and ineligible for adjustment of status is the violation exceeded 180 days. It generally does matter whether the violation occurred before or after the I-485 was filed.