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Immigration Issues/Staying in the U.S. post OPT


Hi Jim -

Thanks for your great service.
My colleague has a valid EAD through OPT until 12/8/05.  Our company has applied for her labor under PERM (EB3) just last month.

I understand that the priority date for EB3 is retrogressed at this time.  Once the labor is certified, can my colleague file for I-140 and renew her EAD based on labor certification?  We were advised that there is no more h1-b visa available for the next fiscal year; however, she wants to remain in the U.S. and continue working, if possible.

If she cannot file EAD, what could she do to remain in the U.S. and wait for her priority date to become current?



Yes, H-1Bs have been exhausted since August (for the fiscal year that began in October).  An I-140 is not enough to renew an EWAD, she needs a pending I-485, which is probably not possible with the priority dates retrogressed).  I can't say what the solution is, or even say that there is one, since I have not reviewed the case in detail.  

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James D. Mills, Esq.


I can answer questions regarding business and family immigration, deportation, removal, exclusion, the immigration consequences of crimes and structuring criminal cases to eliminate or mininize immigration consequences.


I have been a licensed immigration attorney and a member of the American Immigration Lawyer's association for more than five years.

American Immigration Lawyer's Association.

Juris Doctorate, Rutgers School of Law- Camden, 1997

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