在我讀到的那個帖子中，另一律師的回答是：USCIS在這種情況下可以在其後Revoke H1B。理論上如此，現實中沒有。在那個帖子中另一某人引述另一律師的回答是：“Technically, as I see the law, if CIS denies the AOS, they can also revoke the H-1 given beyond six years. As a practical matter, they do not. So, even after denial, you should be able to stay in USA to the end of the already granted H-1. You can start a new PERM application and eventually, get H-1 extensions based upon that.”- Reasonable
但既然理論上有這種可能，也不知將來會不會，為何不采用另一做法：仍然用您貼中的例子，假設王五在10/1/2005拿到EAD和AP，立 即於當天使用EAD，File I9，- Filing I-9 does not terminate H-1b status at all
Stop H1B Clock，隻保留AOS身份。在7/5/2010 I-485被拒後立即申請新的H1B，使用當初沒有用完的4年H1B。
最近Google "Maintaining H1B while I-485 Pending"，才發現這一看法和做法。似乎流行的做法是保留H1B，但這種說法的存在總會讓人不安。不知這種說法是否正確，和保留H1B的做法比較有 何利弊。以下是這一貼子中的相關部分，還請皮老師和各位老師指教。
- Following statement merely indicate that the person may have difficulty in understanding plain English as "The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made: ..." or extends the meaning of above statement.
It says "you get extension when you are qualified", which equals to "you don't get extension when you're not qualified", but it does not equal to "your extension gets revoked automatically when you become unqualified". Period.
Q:
I understand that extending H1 while in AOS after the 6th year does not provide an advantage. My question is - if an applicant is in the 7th year (or beyond) on H1 with a pending AOS, and if the AOS application is denied, does the H1 become invalid immediately or is it valid for the term specified in the H1 approval notice? e.g. I am in my 8th year H1 (valid till Oct'08). If my AOS is denied today (Jun'08), does my H1 become invalid today or can I continue on H1 till Oct'08? Thanks in advance.
A:
That issue has not been addressed by the CIS. My own interpretation is that the H would become invalid immediately since you would no longer be entitled to remain in H status beyond six year as soon as the AOS is denied.
The fact that the CIS extended the H stay is not dispositive. In the days before there was an exemption to the six year limit, the CIS used to routinely (in error) extend H status beyond six years. They took the position then that such an extension did not grant valid status after the six year limit because the law limited H nonimmigrants to six years. In this case, that same reasoning applies.
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That is a very good question. The CIS has never addressed it. My feeling, based on the limited precedent available, is that you cannot continue working legally. I base this conclusion on the way the INS handled cases where they mistakenly extended H1B petitions beyond six years (when six years was the absolute limit). In those cases, they uniformly held that the six year limit was absolute and their error in extending a petition beyond that time did not make the stay beyond six years lawful. They also held that a nonimmigrant cannot rely on the agency's mistake.
I suspect that if this ever comes up, they are likely to take a similar stance. The law is pretty clear: you may not remain in H status beyond six years unless you qualify for an exemption. Note that this limitation is on the length of time you may remain here, not the length of the petition or the ability to have a petition extended. Today, for people who are subject to the six year limit, we see petitioner actually counting days for recapture of time.
