What to do about an I-485 and an H1B?

Over a year ago my wife and I filed our I-485 (spouse as my petitioner (Cuban adjustment). In mid-summer we were separately interviewed and had several inconsistent answers due to which received a NOID quoting those answers. Then 2 months ago we responded to this NOID with sworn statements, additional evidence, and explaination why the answers mismatched. Now it is almost 2 months since we filed the response, still no news from USCIS. Meanwhile I was offered a full-time position with a company that could petition an H1B. What are the rules that apply to such case? Can I change my status from pending 485 to H1B? What will happen if the 485 is denied in that case? Do we need to cancel our 485 before it is denied and switch to H1B?

Asked on November 1, 2014 under Immigration Law, Florida


SB Member California Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

No, it is all right for you to start a job and have the employer petition you for a H-1B.  Since H-1B is a dual intent visa, you can have it with an employer while having a I-485 pending.  There is no problem with that.  Do not cancel the I-485 since there is a chance it will be approved.  But you can still go ahead and proceed with the H-1B.

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