Re: Disability under H1 and EB1


Hello All. I am in a strange situation. I have an EB1 Extraordinary
Ability
I-140 filed and pending. They have given me my advance parole and work
permit docs. I expect a final result from them very late this year.
Currently I work on an H1B; not the work permit. However, due to
health
complications, I am forced to take long term disability time off from
my
job, for about 6 months, until October. Under Family and Medical Leave
act,
my job is guaranteed only for 3 months, ie July. After that, my
company
could and will hire some one else. My H1B will lapse. In the time from
end
of July, when my H1 vanishes, and end of October, when I expect final
result
from INS, can I stay in this country legally? I realise that if the
I-140
fails, I need to leave the country in October and can stay only if it
succeeds. What is my status in that period from August to October?

I strongly suggest that you talk to a qualified immigration lawyer. Why
risk your future in the US on replies from unqualified people like me on
an internet notice board?

Having said that, here's my take on the situation. From what you say,
you have your Advanced Parole (I-131) and your Employment Authorization
Document (I-765) as a result of your I-140 application. The EAD means
that you do not have to keep your H1-B status - you are free to work (or
not work) until a decision is made on your I-140 application. In your
case, your H1-B status would lapse if your H1-B sponsoring company fires
you due to your extended disability (sorry to hear that - it really
sucks!) but you would immediately switch to your pending I-140 status.
This would be automatic, I think, but that's where I'm unsure and a
lawyer would be more help.

I too went through the Exceptional Ability/National Interest route. My
timeline is as follows:

2/27/2006 - I-140 and I-485 filed concurrently
2/28/2006 - I-131 Advanced Parole approved
2/29/2006 - I-140 National Interest Waiver approved
2/30/2006 - I-765 EAD approved for my (H4) wife
2/31/2006 - Biometrics appointment (canceled)
2/32/2006 - Biometrics (rescheduled)
2/33/2006 - I-485 Approved
2/34/2006 - Green Cards arrived

In your case, your I-140 hasn't been approved yet, so the timescales
involved may be less certain. Either way, in my view you can remain in
status with your pending I-140, regardless of your H1-B status.

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