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LostInGCProcess
04-15-2011, 04:03 PM
Hi all,

I am currently on EAD for the past couple of years. I got a new job offer but the employer is insisting on filing an H1 for me. Saying it would be a safe bet for them.

Now I have couple of questions:

1) What would happen to my I-485? Would that be jeopardized?
2) Since, for the past 2 years, I am on EAD, is it possible to file an H1?

Please let me know.

bugsbunny
04-15-2011, 04:12 PM
Hi all,

I am currently on EAD for the past couple of years. I got a new job offer but the employer is insisting on filing an H1 for me. Saying it would be a safe bet for them.

Now I have couple of questions:

1) What would happen to my I-485? Would that be jeopardized?
2) Since, for the past 2 years, I am on EAD, is it possible to file an H1?

Please let me know.

You can file H1...it won't affect your EAD or GC application
It is safer as it serves as a buffer...when renewing EAD...if the EAD does not arrive on time...u can continue working with H1
Also if there are issues with GC u still have H1 to continue working

LostInGCProcess
04-15-2011, 04:36 PM
You can file H1...it won't affect your EAD or GC application
It is safer as it serves as a buffer...when renewing EAD...if the EAD does not arrive on time...u can continue working with H1
Also if there are issues with GC u still have H1 to continue working

Thanks, Bugsbunny for the quick response.

Is it possible to file an H1 in the first place, since I no longer am in H status. My current Status is "AOS". On what basis could they file H1? I have already exhausted my 6 years and another 3 years (after my I-140 got approved) of H1 with my former employer who initially did all that.

bugsbunny
04-15-2011, 04:44 PM
Thanks, Bugsbunny for the quick response.

Is it possible to file an H1 in the first place, since I no longer am in H status. My current Status is "AOS". On what basis could they file H1? I have already exhausted my 6 years and another 3 years (after my I-140 got approved) of H1 with my former employer who initially did all that.

Anyone can file H1 at anytime...as long as there are visas still available under the 65K and 20K caps...its not dependent on other visa/immigration status

and while you are in "AOS"..you can renew you H1 3 years at a time...forever...until u get GC

bugsbunny
04-15-2011, 04:50 PM
however you will be subject to cap(unless you are cap-exempt) as i don't think you can extend your older H1 which expired 2 years ago

kate123
04-15-2011, 04:52 PM
Thanks, Bugsbunny for the quick response.

Is it possible to file an H1 in the first place, since I no longer am in H status. - YES
My current Status is "AOS". On what basis could they file H1?
I have already exhausted my 6 years and another 3 years (after my I-140 got approved) of H1 with my former employer who initially did all that - As long as you have approved 140, you can extend H1 any number of times, even if you move to a different company... Just make sure your prior employer did not revoke your 140.

See my comments... Talk to a lawyer before you take any step.

LostInGCProcess
04-15-2011, 04:54 PM
however you will be subject to cap(unless you are cap-exempt) as i don't think you can extend your older H1 which expired 2 years ago

Since I am not continuously on H status, could they file H1? Do i have to go out and re-enter to change the status "officially" back to H1? I doubt if the H1 even would come with the I-94 stub.

vinzak
04-15-2011, 04:58 PM
I am currently on EAD and mu employer had filed a H1b for me with the reasoning that if my GC should be rejected for any reason, I can revert to the H1.

However, my H1 has been filed as consular processing and not as adjustment of status. This is important. According to my lawyer, if they file as H1 AOS, then you revert to H1 when the petition is approved (because a new I94 is attached to it). This can be construed as abandonment of your 485. Please keep this mind.

As for quota, I was told quota does not apply to my H1 application if I've previously held an H1 in the past 6 years. You may need to confirm this since i had not finished 6 yrs on H1 before going on EAD.

bugsbunny
04-15-2011, 04:58 PM
Since I am not continuously on H status, could they file H1?.
Yes...it will be a new H1 application

Do i have to go out and re-enter to change the status "officially" back to H1? I doubt if the H1 even would come with the I-94 stub.

no you don't have to go out of the country...you can stay here and maintain dual statuses.
only if you want the H1 visa Stamp on your passport ...then you will need to go out and do it at the consulate

Your newly approved H1 will come with I-94

LostInGCProcess
04-15-2011, 05:09 PM
I am currently on EAD and mu employer had filed a H1b for me with the reasoning that if my GC should be rejected for any reason, I can revert to the H1.

However, my H1 has been filed as consular processing and not as adjustment of status. This is important. According to my lawyer, if they file as H1 AOS, then you revert to H1 when the petition is approved (because a new I94 is attached to it). This can be construed as abandonment of your 485. Please keep this mind.

As for quota, I was told quota does not apply to my H1 application if I've previously held an H1 in the past 6 years. You may need to confirm this since i had not finished 6 yrs on H1 before going on EAD.

Thanks Vinzek.

This can be construed as abandonment of your 485
This is preciously what I was worried about. If the new employer files H1, then what would happen to my I-485. I have waited this long and I really dont want to stat over the GC process again.

So, technically, H1 could be done. Not sure what would happen to my current I-485.

pd052009
04-15-2011, 05:21 PM
Yes...it will be a new H1 application



no you don't have to go out of the country...you can stay here and maintain dual statuses.
only if you want the H1 visa Stamp on your passport ...then you will need to go out and do it at the consulate

Your newly approved H1 will come with I-94

If it is new H1, don't you have to wait till Oct 2011 before starting your work?

bugsbunny
04-15-2011, 05:34 PM
If it is new H1, don't you have to wait till Oct 2011 before starting your work?

yes ...but he can still work on EAD in the meantime

bugsbunny
04-15-2011, 05:37 PM
Thanks Vinzek.


This is preciously what I was worried about. If the new employer files H1, then what would happen to my I-485. I have waited this long and I really dont want to stat over the GC process again.

So, technically, H1 could be done. Not sure what would happen to my current I-485.

just keep entering the US on AP...don't use the H1...so then your 485 is not "abandoned"
you can obtain H1...you dont have to use it...as u have EAD...its just for backup

unitednations
04-15-2011, 06:58 PM
This is how it works.

Everytime you file an h-1b you have to declare whether you are subject to h-1b quota or not.

If you have obtained an h-1b visa in the past or received an H-1b with an I-94 card and you have not exhausted six years, then you are not subject to the quota.

OR

You have exhausted six years but you have an approved I-140 or a labor pending older then 365 days prior to the expiry of your six years then you are also not subject to the quota.

Once you establish that you are not subject to the quota then you request, consular notification, change of status, extension of stay, amendment, etc. You can only request all other actions other then consular notification; if you are currently in non immigrant status (ie., h-1b, f-1, l-1,, etc.). If you are no longer in non immigrant status then you have to request consular notification. You will go for visa stamping and then get I-94 card at the port of entry and then you will be on h-1b once again.

Your I-485 adjustment of status will be considered abandoned, if you leave USA without advance parole or without H-1b visa. Now, this causes confusion because literal reading of the law states that if you don't have h-1b visa when you leave and you don't have advance parole then it is considered abandoned. However, how USCIS is doing it, is if you don't have advance parole but you obtain h-1b visa stamping and re-enter USA, they do not consider it abandonment.

The advice you are getting from other posters is off.

Many people who have gotten off H-1b and have been using EAD are advised to get an h-1b approval without I-94 card and just in case there runs some issue with 485 or ead or advance parole then they can run to consulate and get immediate visa stamping and re-ente usa.

However, those who are stricly working on EAD and something should go wrong then they have to file h-1b, get it approved and go for visa stamping. (it takes time to get all this done and getting h-1b approved these days isn't so easy)

LostInGCProcess
04-16-2011, 04:59 PM
This is how it works.



Unitednations, Thank you for explaining in great detail.

I have last entered US using AP. I am currently on EAD (for the past couple of years). I got this job offer from a fortune 100 employer, who wants to file H1. For some reason they dont feel comfortable hiring me on EAD, which I find it strange. They did a "AC21 portability analysis" and said the new job offer is within the same or similar category, but the wage (from PERM) is far higher then the current offer..so, they cast some doubts on porting.

That's why they said they insist on doing H1 for me. I want to know, what would happen to my I-485 that is pending for this long, with the former employer?

Say hypothetically ,If I take this new job offer, they file H1, and say I am on H1. How does USCIS adjudicate AOS when I become current, in this scenario where the new employer, (although job offer is a full time) thought I may not be portable and the old employer is not in the picture??

To summarize my situation:

Company A filed my immigration petition. Got the Labor approved and I-140 approved. I filed I-485 to adjust. I have been waiting for more than 180 days, thus able to switch jobs in the same related field.

Company B, want to hire me, but on the condition that I be on their H1.

What would be the plight of my AOS?

Thanks!!

unitednations
04-16-2011, 06:08 PM
It appears to me that the company/lawyer is trying to protect you and them.

They are afraid that if you are not on H-1b with them and USCIS either in an RFE on your 485 or you proactively informing uscis that you are using ac21; make a determination that is is not same or similar then the 485 will get denied and you would not have any work authorization or any way to stay in usa.

The mere fact of company filing h-1b for you does not mean that you are abandoning I-485. From everything you have told; they are going to file in consular processing and you will go for visa stamping and re-enter usa on h-1b.

When you re-enter USA on h-1b you will be authorized to stay in united states by the H-1b I-94 card OR the 485 adjustment of status.

Nothing will happen to the I-485 unless USCIS makes a determination that the job is not same/similar.

If I were you; I would tell company that if they don't think the job is same/similar then while you are working with them; they should file another perm labor for you, file I-140; port priority date and then inter file the I-485 to your new I-140. This way you will get out of the same/similar job issue as your 485 will then be dependent on their I-140.

One of the bigger problems I see right now is the prevailing wages that DOL is giving for EB2 positions is that if the job requires bachelors and five years of experience then they are giving level 4 wage. If it is masters and zero years of experience then they are giving level 2 wage. these wages are very, very high and people working at the so called permanent employers will have an extremely difficult tie getting companies to file eb2 labors if the wage is way out of ine with what they are making.

I remember a few years ago; a person had contacted me and told me that his date was current but his permannet employer was not allowing to file his I-485. At the end the story was that his labor required $93K but he was making $78K and the company could not give him a letter for his 485 becuase hey could not guarantee that he would make that salary once 485 was approved. They suggested to him that let him get some pay raises and once he got close to the $93K then they would file 485 for him.

These are the types of issues facing people at the so called permanent employers. I have talked to some stafifing companies and they have told me that they actually like this higher prevailing wage (even though ability to pay the proffered wage has become tougher) because it would be very unlikely that people would be able to port using ac21 to permanent employers because the permanent employers are not going to give ac21 letters with these higher wages (seems like this is something happening to you).

Michael chertoff
04-16-2011, 06:35 PM
It appears to me that the company/lawyer is trying to protect you and them.

They are afraid that if you are not on H-1b with them and USCIS either in an RFE on your 485 or you proactively informing uscis that you are using ac21; make a determination that is is not same or similar then the 485 will get denied and you would not have any work authorization or any way to stay in usa.

The mere fact of company filing h-1b for you does not mean that you are abandoning I-485. From everything you have told; they are going to file in consular processing and you will go for visa stamping and re-enter usa on h-1b.

When you re-enter USA on h-1b you will be authorized to stay in united states by the H-1b I-94 card OR the 485 adjustment of status.

Nothing will happen to the I-485 unless USCIS makes a determination that the job is not same/similar.

If I were you; I would tell company that if they don't think the job is same/similar then while you are working with them; they should file another perm labor for you, file I-140; port priority date and then inter file the I-485 to your new I-140. This way you will get out of the same/similar job issue as your 485 will then be dependent on their I-140.

One of the bigger problems I see right now is the prevailing wages that DOL is giving for EB2 positions is that if the job requires bachelors and five years of experience then they are giving level 4 wage. If it is masters and zero years of experience then they are giving level 2 wage. these wages are very, very high and people working at the so called permanent employers will have an extremely difficult tie getting companies to file eb2 labors if the wage is way out of ine with what they are making.

I remember a few years ago; a person had contacted me and told me that his date was current but his permannet employer was not allowing to file his I-485. At the end the story was that his labor required $93K but he was making $78K and the company could not give him a letter for his 485 becuase hey could not guarantee that he would make that salary once 485 was approved. They suggested to him that let him get some pay raises and once he got close to the $93K then they would file 485 for him.

These are the types of issues facing people at the so called permanent employers. I have talked to some stafifing companies and they have told me that they actually like this higher prevailing wage (even though ability to pay the proffered wage has become tougher) because it would be very unlikely that people would be able to port using ac21 to permanent employers because the permanent employers are not going to give ac21 letters with these higher wages (seems like this is something happening to you).

If someone goes for h1b stamping and get rejected. still he can enter US on Advance Parole. is it correct?

FraudGultee
04-17-2011, 10:26 AM
Yes, that is possible

unitednations
04-17-2011, 01:07 PM
it depends on reason for refusla of h visa.

If you are not admissable to USA(ie., criminal record, subject to 3/10 year bar) then they won't give the visa and you will probably not be allowed to enter USA at the port of entry in any type of status. (this is very rare).

If visa is refused because you can't get client letter, they suspect some issue with your company, etc., then the visa refusal has nothing to do with you but the petitioner of the h-1b. If this is the case then you are still admissable and will be allowed to re-enter on advance parole (this is usually the issue with h visa refusals.

LostInGCProcess
04-18-2011, 11:16 AM
I remember a few years ago; a person had contacted me and told me that his date was current but his permannet employer was not allowing to file his I-485. At the end the story was that his labor required $93K but he was making $78K and the company could not give him a letter for his 485 becuase hey could not guarantee that he would make that salary once 485 was approved. They suggested to him that let him get some pay raises and once he got close to the $93K then they would file 485 for him.


I am in the similar situation. I thought the proffered wages was not that of a big deal, when you move from the original Employer who filed the GC to a new employer in the same related field.
Does the Wages determined by DOL on the PERM, specific to city, state? If so, can we substantiate using cost of living index to justify the lower salaries?

unitednations
04-18-2011, 11:24 AM
I am in the similar situation. I thought the proffered wages was not that of a big deal, when you move from the original Employer who filed the GC to a new employer in the same related field.
Does the Wages determined by DOL on the PERM, specific to city, state? If so, can we substantiate using cost of living index to justify the lower salaries?

labor wages are specific to a city/county. Just go to flc data and you can look up historical wages (ie., 2006,2005, etc.); look to see the specific county that your labor was filed and see which level the wage is (ie., level 1, level 2, etc.) and then see what the current wage is for that same occupation, level for where you are currently working. If it is in same level then you should be o.k.

Just keep in mind that when there is a job duty differential or wage differential and you are going to so called permanent employer; you do NOT have any flexibility with company, lawyer, etc. You won't be able to talk them into doing anything. if they say it is not similar, etc., then you are at their mercy of what they will or won't do.

prudent thing is to hash these thingss out before you take the position.

LostInGCProcess
04-18-2011, 03:47 PM
labor wages are specific to a city/county. Just go to flc data and you can look up historical wages (ie., 2006,2005, etc.); look to see the specific county that your labor was filed and see which level the wage is (ie., level 1, level 2, etc.) and then see what the current wage is for that same occupation, level for where you are currently working. If it is in same level then you should be o.k.

Just keep in mind that when there is a job duty differential or wage differential and you are going to so called permanent employer; you do NOT have any flexibility with company, lawyer, etc. You won't be able to talk them into doing anything. if they say it is not similar, etc., then you are at their mercy of what they will or won't do.

prudent thing is to hash these thingss out before you take the position.

Thank you, Unitednations. You have really explained well and its now clear to me where I stand. I always read you post thoroughly because you give lot of useful information based on facts.
I am now really giving second though to the job offer.
Thanks and good to see you again.

HRPRO
04-19-2011, 10:17 AM
You can go back to H-1 by applying for one but when you travela nd enter the country on AP. your H-1 is not valid anymore. To keep your H active, you will have to enter the country on H and keep the AP/EAD as a backup just in case your Hdoesnt go through but I dont think you will have an issue with your H after being here for so long.

unitednations
04-19-2011, 11:18 AM
You can go back to H-1 by applying for one but when you travela nd enter the country on AP. your H-1 is not valid anymore. To keep your H active, you will have to enter the country on H and keep the AP/EAD as a backup just in case your Hdoesnt go through but I dont think you will have an issue with your H after being here for so long.

Sometimes people ask what appear to be simple questions, and people give simple answers. Most things with immigration are not so simple.

There are many laws, interpretations, etc. You have the immigration nationality act, u.s.c., code of federal regulations, administrative appeals office decisions, adjudicator manuals, opinion letters from uscis counsel, opinions from business liaisons within uscis, etc.

Plain reading of one of the above very rarely will give you the correct answer.

As an example; last action is what dictates a persons stay in USA. Therefore, if a person enters on advance parole then they are here as an adjustment of status candidate. If they enter on H-4, then h-4 becomes their status.

However, there is binding memos that uscis issues of how they are going to interpet and treat different situations which is what uscis goes by.

IN 1998/1999 when they made H/L dual intent visas; they anticipated that a person may enter usa on advance parole but still have a valid h/l visa. It was called the cronin memo. Essentially, what it said was that if a person enters on advance parole but continues to work with the h-1b employer and extends the h-1b when it comes for renewal, then uscis will approve it, even though they entered on advance parole and they will give the I-94 card with it. When these three events happen (ie., enter on advance parole, continue to work with h-1b employer and extend when it comes for renewal then they will have considered you to have entered on H-1b.). All these conditions have to exist. If you don't work with the h-1b employer or you do not extend then you would have been considered to have entered on advance parole and 485 would have been your authorized stay.

The above has been tried, tested thousands of times (when you go to file the h-1b extension in above scenario then on the I-129 form, you would state your date of last entry as to when you entered on advance parole, you would put your current status as h-1b and for expiry date you would use the i-94 card attached with the h-1b approval. USCIS will then approve the h-1b with i-94 card.

As stated above, this is not theory, it is covered by cronin memo and has been tested/tried many times over the years.

LostInGCProcess
04-19-2011, 12:32 PM
.

Unitednations,

This is what the attorneys of the employer responded to me with regards to H1 process.

Quote " The back-up H-1B petition would potentially allow this candidate to continue to work for AAAAA should something happen and his green card case not be approved. If for some reason his adjustment were denied, he could then consider leaving the US, obtaining an H-1B visa abroad and returning to the US to work for AAAAA in H-1B status. That would potentially allow AAAAA to sponsor a new green card process for the candidate if needed.

If he decides to retain his current attorney for purposes of the adjustment process, we would still be involved in preparation and filing of the back-up H-1B petition. It is AAAAAs' interests as well as his to have a back-up H-1B petition for him. "

It appears to me that they would want to file an H1 but would let me work on EAD....and should something go wrong with my GC process, then they can revert to H1. I am confused if this is possible? Also, would there be any problem with my current GC process?

unitednations
04-19-2011, 12:38 PM
Unitednations,

This is what the attorneys of the employer responded to me with regards to H1 process.

Quote " The back-up H-1B petition would potentially allow this candidate to continue to work for AAAAA should something happen and his green card case not be approved. If for some reason his adjustment were denied, he could then consider leaving the US, obtaining an H-1B visa abroad and returning to the US to work for AAAAA in H-1B status. That would potentially allow AAAAA to sponsor a new green card process for the candidate if needed.

If he decides to retain his current attorney for purposes of the adjustment process, we would still be involved in preparation and filing of the back-up H-1B petition. It is AAAAAs' interests as well as his to have a back-up H-1B petition for him. "

It appears to me that they would want to file an H1 but would let me work on EAD....and should something go wrong with my GC process, then they can revert to H1. I am confused if this is possible? Also, would there be any problem with my current GC process?

This is right in line with whatI said in earlier post.

there won't be any adverse action to your 485 if company should do this. I'm going to assume that you are past six years and the basis of your h-1b will be your old 140 approval. You may want to ask your new company attornies, if something should go wrong with 485 or old comppany revokes 140 then will you have an issue with visa stamping on the h-1b because the basis for its approval (ie., 140 approval) would no longer be there.

I know this costs money but you should request new company to file perm labor and 140 for you and port priority date. this way you can become independent of your old case.

Most consultants I know (they are from andhra pradesh) love to protect themselves in every manner possible. Even if you tell them there is 5% risk they still want to cover themselves from any potential pitfalls. -:)

LostInGCProcess
04-19-2011, 03:36 PM
This is right in line with whatI said in earlier post.

there won't be any adverse action to your 485 if company should do this. I'm going to assume that you are past six years and the basis of your h-1b will be your old 140 approval. You may want to ask your new company attornies, if something should go wrong with 485 or old comppany revokes 140 then will you have an issue with visa stamping on the h-1b because the basis for its approval (ie., 140 approval) would no longer be there.

I know this costs money but you should request new company to file perm labor and 140 for you and port priority date. this way you can become independent of your old case.

Most consultants I know (they are from andhra pradesh) love to protect themselves in every manner possible. Even if you tell them there is 5% risk they still want to cover themselves from any potential pitfalls. -:)

Yes, I was on H1 more than 6 years. Past sixth year was based on my approved I-140. After that I started using EAD.
The Old employer was bough over by another company and I don't think they would withdraw I-140 in any way.

I don't think this firm would like to process GC for all the H1 holders. Its a big employer but I heard they only do about 20 GC/year out of maybe 60-70 H1's...so, I don't think they would do the PERM and I-140.

I have a question:
If this employer files H1 based on old i-140 approval, could it trigger some kind of RFE on my I-485? Is there a possibility?

LostInGCProcess
04-20-2011, 12:03 PM
This is right in line with whatI said in earlier post.

there won't be any adverse action to your 485 if company should do this. I'm going to assume that you are past six years and the basis of your h-1b will be your old 140 approval. You may want to ask your new company attornies, if something should go wrong with 485 or old comppany revokes 140 then will you have an issue with visa stamping on the h-1b because the basis for its approval (ie., 140 approval) would no longer be there.

I know this costs money but you should request new company to file perm labor and 140 for you and port priority date. this way you can become independent of your old case.

Most consultants I know (they are from andhra pradesh) love to protect themselves in every manner possible. Even if you tell them there is 5% risk they still want to cover themselves from any potential pitfalls. -:)

Unitednations,

I am now more confused than ever before.

The employer wants to file an H1, citing "safe side". But the very extension is base on my previous employer approved I140. So, something goes wrong with my adjustment, my H1 is automatically invalid...since there is no basis.

So, don't you think the employer is in the same situation, whether he does H1 or hires me on EAD, should my adjustment is denied?

Is there any noticeable difference between the two, i.e., hiring me on h1 or hiring me on EAD ?

unitednations
04-20-2011, 12:35 PM
Yes, I was on H1 more than 6 years. Past sixth year was based on my approved I-140. After that I started using EAD.
The Old employer was bough over by another company and I don't think they would withdraw I-140 in any way.

I don't think this firm would like to process GC for all the H1 holders. Its a big employer but I heard they only do about 20 GC/year out of maybe 60-70 H1's...so, I don't think they would do the PERM and I-140.

I have a question:
If this employer files H1 based on old i-140 approval, could it trigger some kind of RFE on my I-485? Is there a possibility?

Generally, NO it won't trigger rfe.

however, the very rare time there is a smart adjudicator who when sending an rfe on the 485 states that the beneficiary is no longer working with 485 employer becasue beneficiary has changed employer through h-1b. If this is the case then show job is same/similar, etc.

I saw a few of these types of rfe's (their not a big deal) a couple of years ago which seemed to be triggered because uscis had informatin that you are no longer working with 485 employer.

unitednations
04-20-2011, 12:38 PM
Unitednations,

I am now more confused than ever before.

The employer wants to file an H1, citing "safe side". But the very extension is base on my previous employer approved I140. So, something goes wrong with my adjustment, my H1 is automatically invalid...since there is no basis.

So, don't you think the employer is in the same situation, whether he does H1 or hires me on EAD, should my adjustment is denied?

Is there any noticeable difference between the two, i.e., hiring me on h1 or hiring me on EAD ?

There isn't any noticeable difference. Maybe lawyer is just trying to make some money by filing an h-1b. You should run the scenario by the lawyer that if the 140 gets revoked then will it be possible to get the h-1b visa stamping since your h-1b would have been approved based on an i-140 that is no longer there (keep in mind that many people think that 140 revocation has no impact on 485 or porting priority date to another 140 due to uscis memo that priority date is retained by beneficiary unless 140 was revoked due to fraud). This is a different scenario since there is no similar language of getting an h-1b extension based on a revoked 140.

rbalaji5
06-09-2011, 09:07 PM
what will happen if I switch from AP/EAD to H1, and then after entering U.S using H1 go to new employer using EAD, will it invalidate the I-485 ?.

rbalaji5
06-10-2011, 10:53 AM
Hi Unitednations, Do you have any idea for my situations above. Adv thanks for your help.

looivy
06-13-2011, 03:23 AM
Hi United Nations,

I read your analysis on this thread regarding H1 --> EAD --> H1 for LostinGCprocess. I have a question for you since my situation although similar to this person's situation is a bit different.

I entered US on AP (AOS). I have been working using H1B for my employer A. From what I understand, visa status and employment authorization status are two different things. My visa status is AOS and my current employment status is H1B with employer A. I am also beyond 6 years on h1b.

I have a great offer from employer B. Almost 1.4 times my current salary. They initially asked me to work on EAD but I asked them to apply for my H1 because H1 provides a safety net. Their lawyers have asked me to start on EAD and suggested that they will start the H1B process on the side. The lawyers mentioned that starting on EAD has no adverse impact on H1B. They just filed LCA a few days back and it is possible that LCA may not be approved before my starting date which is in 5 days. I am afraid that if I start on EAD, the whole process may count as H1 --> EAD --> H1. Based on your analysis in the thread above, H1 may have an adverse impact on my I-485 (the reverse may not be true i.e. EAD may not have an adverse impact on H1 transfer). Also, I do not know how my entering on AOS plays into this all.

Can you please advise what are the various options that I have here? I do not want my H1 application to create a situation where it shows that I have abandoned my I-485.

PS: Employer A is not the one that filed I-140 and supported I-485. It was my previous employer Z.

Thanks a lot in advance.

unitednations
06-14-2011, 07:39 PM
what will happen if I switch from AP/EAD to H1, and then after entering U.S using H1 go to new employer using EAD, will it invalidate the I-485 ?.

Nope; won't invalidate the 485.

Do you contemplate coming in on h-1b and then right away reporting to someone else on ead?

The main way that your 485 will get invalidated is if you enter on a non dual intent visa (ie., f-1,b1/b2, etc.).

unitednations
06-14-2011, 07:45 PM
Hi United Nations,

I read your analysis on this thread regarding H1 --> EAD --> H1 for LostinGCprocess. I have a question for you since my situation although similar to this person's situation is a bit different.

I entered US on AP (AOS). I have been working using H1B for my employer A. From what I understand, visa status and employment authorization status are two different things. My visa status is AOS and my current employment status is H1B with employer A. I am also beyond 6 years on h1b.

I have a great offer from employer B. Almost 1.4 times my current salary. They initially asked me to work on EAD but I asked them to apply for my H1 because H1 provides a safety net. Their lawyers have asked me to start on EAD and suggested that they will start the H1B process on the side. The lawyers mentioned that starting on EAD has no adverse impact on H1B. They just filed LCA a few days back and it is possible that LCA may not be approved before my starting date which is in 5 days. I am afraid that if I start on EAD, the whole process may count as H1 --> EAD --> H1. Based on your analysis in the thread above, H1 may have an adverse impact on my I-485 (the reverse may not be true i.e. EAD may not have an adverse impact on H1 transfer). Also, I do not know how my entering on AOS plays into this all.

Can you please advise what are the various options that I have here? I do not want my H1 application to create a situation where it shows that I have abandoned my I-485.

PS: Employer A is not the one that filed I-140 and supported I-485. It was my previous employer Z.

Thanks a lot in advance.

I actually thought I was providing some clarity but with the questions; it looks like people are more confused:).

Even though you entered on advance parole but you reported back to your h1b employer and worked with them you are considered on h-1b (note; all the memos I have read is that you are technically in advance parole and you don't revert back to h-1b until you go to extend the h-1b when it is about to expire. Since, the memos didn't cover the situation where a person enterson advance parole, continues to work with the h-1b employer but then before they file h-1b extension they try to transfer h-1b to another employer. In my history of seeing things in immigration, I have only come across one such scenario and I was interested to see how uscis would handle this situation. They approved it... Not much of a sample size but they did approve it.

Now, back to your question... about starting on ead due to a time delay and then filing h-1b a couple of days after because it takes a few days to get lca approved. Technically, you would have violated h-1b status because you started working before the h-1b was filed. I do know a situation where a person was transferring h-1b to another employer (mainly a billing transfer); the h-1b got sent out 2 days after the person changed his billing. USCIS asks for client letters, etc., and the client letters/p.o. essentially said the person started on xxx date which was 2 days before uscis received the h-1b applicaiton. USCIS approved the h-1b but denied the i-94 card and told he has to go visa stamping because he violated his h-1b status for those two days (this is very rare when it happens and lawyer was a little careless in this).

sunny1000
06-15-2011, 01:36 AM
Hi Unitednations,

I have a little different issue at hand. I did not renew my H1B for the last couple of years and started to work on EAD for the same company that filed for my GC in 2002. Now, if I want to get married, the only best option for me is to bring my spouse in H4. So, if I revive my H1 petition, will that affect my AOS/GC process?

Also, if I do get H1 approved and go for visa stamping in canada (I know I can't do change of status) and get stuck on 221G admin processing, can I come back into the U.S using Advance Parole until the admin processing is done?

Thanks much in advance for your reply and help.

unitednations
06-15-2011, 11:43 AM
Hi Unitednations,

I have a little different issue at hand. I did not renew my H1B for the last couple of years and started to work on EAD for the same company that filed for my GC in 2002. Now, if I want to get married, the only best option for me is to bring my spouse in H4. So, if I revive my H1 petition, will that affect my AOS/GC process?

Also, if I do get H1 approved and go for visa stamping in canada (I know I can't do change of status) and get stuck on 221G admin processing, can I come back into the U.S using Advance Parole until the admin processing is done?

Thanks much in advance for your reply and help.

Please read the entire thread; usually the answer was already posted to the question. short answer is yes; you would be able to come back in using advance parole.