1. If there is an open priority date for your I-485, your status would be frozen, and you would not accrue unlawful presence during the pendency of the timely filed I-140 application
A reader asks:
My H-1B is about to expire, I am thinking of submitting NIW during the grace period, but I’m worried it might not be allowed. Someone told me that I could apply for immigration even from abroad – would that apply to me too?
Alan Lee, Esq. answers,
You can always submit a NIW petition, but an I-140 filing does not prevent you from accruing unlawful presence. That could be done with the timely filed I-140 coupled with I-485 adjustment of status application if there is an open priority date for filing the I-485. In such case, your status would in effect be frozen and you would not accrue unlawful presence during the pendency of the application. In such circumstance, a denial of the adjustment of status application would start the counting of unlawful presence at Day 1 as of the date of denial. Pertaining to your question of whether you can apply for immigration from overseas, you can indeed file for an I-140 petition when you are overseas.