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Can I stay in USA after applying for I-130

San Jose, CA |

I will be completing 6 years on H1B in next 11 months. IF my SIL (US citizen) files for my GC in family -4 category, (which has 10 years back current date) will I be able to stay in USA after I complete my 6 years of H1B, or I have to leave the country till the date for the GC processing becomes current.

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Attorney answers 1


No. A pending or approved I-130 petition does not permit the beneficiary to remain in the United States if an immigrant visa is not immediately available. I am not sure what you mean by "SIL", but if it means sister-in-law, you should understand that only a U.S citizen brother or sister can file a 4th preference visa petition, not a brother or sister's spouse. You should discuss visa options, the possibility of your employer's filing a PERM labor certification application before your H-1B maxes out, and the possibility of your departing prior to the end of your H-1B to see if you might be able to return sooner and get additional extensions of H-1B status if the PERM is pending for 365 days or more. This is a complex area, so get a consultation soon with a very experienced and knowledgeable immigration attorney.

Scott D. Pollock
Scott D. Pollock & Associates, P.C.
105 W. Madison, Suite 2200
Chicago, IL 60602
(312) 444-1940
fax: (312) 444-1950

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