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csriram45
03-22-2009, 08:06 PM
Hello,

I am sorry if these questions have been asked and answered, if so please point me to them if not i would appreciate if members can answer my thoughts and questions below.


I am currently employed on H1B with Company A. I am on my 8th year of H1B with 3 year extension on pending AOS. My I140 is approved and 485 is pending with a PD of Sep 2004 EB3. I also have my EAD and AP approved and have not used them yet

My wife is also employed on H1B and is beneficiary of my 485 application and has her EAD and AP as well. She is on her 4th year of H1B.

All along I was thinking that I should continue to stay on my H1 so incase of unfortunate circumstances of my AOS getting denied I still have my h1 status. is this true? I recently read an article that since the extension to h1 is on pending AOS and if AOS gets denied that regardless of the time left on h1, your h1 status is also invalid. Is this correct?

This article also mentioned that in such a situation the employee would rather get on EAD since they one can get unemployment benefits etc and also use AP and not have to worry about getting stamping when traveling outside the country.

It also mentioned that in case you have time left on h1B (like my wife who still has 2 more years left) then by going on EAD you save those years.

If for some reason the AOS gets denied then atleast my wife can get back on her H1B since she would still have 2 years left.

This seems like a wise idea to me. Ofcourse both she and I will be eligible for unemployment benefits and also look around for jobs without having to worry about visa sponsorship.

My question is,

1) is all the above info true?
2) as asked above, since the extension to h1 is on pending AOS and if AOS gets denied that regardless of the time left on h1, your h1 status is also invalid. Is this correct?
3) Should my wife go on EAD and save her h1 time for future and is this a wise move?
4) Would it be wise for myself to go on EAD as well?
5) What are the drawbacks of going on EAD and leaving h1B?
6) Also recently i heard getting visa stamping is becoming an issue, why is that? what are the options and if we both use AP to re-enter do we need to on EAD? I am reading that one can continue on H1 but I am not clear.

Inputs and answers are appreciated.
Thank you

anandrajesh
03-22-2009, 08:57 PM
Hello,

I am sorry if these questions have been asked and answered, if so please point me to them if not i would appreciate if members can answer my thoughts and questions below.


Sriram,

I am on my 9th year H1B and after consultation with my Attorney decided to do the following (these decisions may not be suitable to you, but thought my decisions will help (or confuse) you)

1. No more H1B extensions. Too expensive and too much scrutiny. EAD will serve the same purpose. $350 on EAD will buy me 2 years, so EAD wins out here, but close to $3000 will buy me 3 years on H1B, so EAD wins this hands down.

2. Yes, there is always a risk of USCIS denying your 485, but Attorney was confident that in the unlikely event of that happens, MTR will buy me close to a year. I wouldnt mind packing my bags and leaving if my 485 is denied. I would need time to sell my house and my attorney said she can buy enough time by filing MTR.

3. Re-entering on AP is lot safer than coming back on H1B. I am hearing horror stories about mis-treatments at the US Embassy while for H1B stamping & IOs at POE being rude.
I dont need any of that after almost a decade in US

4. She also told me that if i ever have to file a new GC on say EB-2 with a new employer, i can sure start a new process with me being on EAD (I doubt this is possible)

5. If you lose your job while on H1B you are $crewed, but layoff on EAD can buy you time.

So i am totally convinced to say Bye-Bye to my H1B invoke my EAD and start working on it.

csriram45
03-22-2009, 09:23 PM
Thanks Anandrajesh for your prompt response. I was thinking exactly on your lines. My lawyers themselves might ask me to get on EAD when my h1b expires but i could then argue with them to renew my h1b. however, it seems like this is a battle i dont need to fight for any reason. I am defenitely considering switching to EAD.

I have also hear horror stores about visa stamping. one of my friends is stuck for 3 months. it seems prudent to use AP.

I also read more and it seems like filing for umemployment benefits might cause some issues so good to know that and I might not do that as its a grey area....

Like you said... if AOS is denied, will need to file a MTR and meanwhile start plans to sell house and other things...... appreciate the input....

12 years in this country and after getting a masters degree here...it is just plain stupid to be stuck like this and have to deal with all this....

anandrajesh
03-22-2009, 09:39 PM
12 years in this country and after getting a masters degree here...it is just plain stupid to be stuck like this and have to deal with all this....

If they approve my 485 and give me my green card - great -
If they deny my 485, then i will apply for my Ration card in India - even better.

Sometimes it is better to let somebody else to take a decision on your behalf and this situation is tailor made for me. Win, Win for me - so cant lose. :)

alien02k
03-23-2009, 10:20 PM
What is an MTR

anandrajesh
03-23-2009, 11:55 PM
What is an MTR

MTR - Motion to Reopen/Reconsider

After your 485 is denied technically you are out of status and you have to leave the country ASAP. However filing a MTR will buy you time since you are appealing the decision. End of the day the Judge may agree or disagree with you on the appeal. The time you spent when your application is under MTR is considered a legal stay.

Basically MTR will buy you time to sell your home/ belongings and give you time to pack the bags and leave the country.

ramaonline
03-24-2009, 03:52 AM
Just filing MTR will not give any legal status / extend your legal status


Question: If I-485 is denied, can I continue my job once an MTR is filed within 30 days? Is it legal? I do not have any other visas.

Answer: A person is not legally allowed to remain in the U.S. based simply on the filing of an appeal or an MTR. Only if and when the MTR is finally approved, is the person considered to have maintained status in the U.S. Otherwise, the individual is deemed to no longer maintain valid status and this could jeopardize the ability to obtain the GC approval down the road. Depending on the reasons for the I-485 denial, it may be worth speaking with a knowledgeable immigration lawyer to consider other available options. For example, it may be possible to refile a new I-485 with an I-140 to avoid accruing unlawful presence and also be able to obtain an EAD and an AP for the principal and all derivative family members.
Question: Can a primary and secondary applicant work in the U.S. on EAD while the MTR is pending for the I-485?

Answer: If the USCIS has issued a NOID, then, as long as the notice revoking the approval of the EAD or the AP has not been issued, the person is legally able to keep working. One should be prepared that s/he will not be able to work if the I-485 gets denied. So, hopefully, there is a back-up option at this juncture, too.

csriram45
03-24-2009, 10:01 PM
so what we are saying is that just MTR will not allow us to continue? What else do we need to do? Are we saying that in such a situation we should have 2 485 apps parallel? Is that allowed? I ask what if I can apply for 485 through my wife and have it as backup? I thought 2 485 apps are not a acceptable...

chanduv23
03-24-2009, 11:13 PM
so what we are saying is that just MTR will not allow us to continue? What else do we need to do? Are we saying that in such a situation we should have 2 485 apps parallel? Is that allowed? I ask what if I can apply for 485 through my wife and have it as backup? I thought 2 485 apps are not a acceptable...

It is an ambigious call and a grey area. No one wants to post stuff related to this on open forums as it is subject to different interpretations.

Talk to a lawyer that is the best option.

The main reason for 485 denial on most cases is when underlying 140 has been revoked by ex employer and if you talk to any lawyer - they say that AC21 denials can be reversed.

I don't know about any other types of denials that people get during 485 stage.

csriram45
03-25-2009, 04:44 AM
Thanks Chandu. I realize it is grey and subject to interpretation. I was just trying to understand. What is your take on h1b vs EAD? why should any one prefer to stay on h1b over EAD if they are past 6 years of H1b?

chanduv23
03-25-2009, 11:34 AM
Thanks Chandu. I realize it is grey and subject to interpretation. I was just trying to understand. What is your take on h1b vs EAD? why should any one prefer to stay on h1b over EAD if they are past 6 years of H1b?

It is individual choice. The traditional way of going is via the h1b route because it is less riskier. But if you have more than 6 years on h1b and h1b extensions based on pending 140 - then if 485 is denied - the language is not clear and is a grey area.

Like I said earlier - most of 485 denials happen when ex employer wants to revoke your approved 140 as a revenge or for some other reason which triggers a denial on 485 and have to be resolved through a MTR - this has been a common trend over the years.

Also remember - if you start using EAD - if you want a h1b - you have to do a new h1b and get it stamped and come back.

From speaking to pappu and others including immigration lawyers, there is a lot of scrutiny on new h1b visas and also new PERM labor.

What I am trying to say is - there is nothing called a safe option - just stay put and go by what you think is the best thing to do.

Our community is poorly represented and we have to blame ourselves for our inaction. That's why we are all in this situation - we want everything to be safe - but what is safe? Jump into the water - you will learn to swim by yourself :)

csriram45
03-25-2009, 11:47 PM
If one wants to switch frmo EAD to h1b, does it count under the h1b quota? I was told not as its based on the pending 485.... but the new h1b does not come with a I94 correct?

What is less riskier about being on h1b if u are already past the 6 years and are getting an extension based on pending 485? If a persons 485 gets denied is the h1b still valid? I thought its not even if u have some time left.

As far as 485 denied because 140 is revoked, I thought employers can not do that past the 180 days of 485. Is that correct? Isn't that why its ok to use AC21 and switch jobs after 180 days?

wikipedia_fan
04-09-2009, 04:09 PM
If one wants to switch frmo EAD to h1b, does it count under the h1b quota? I was told not as its based on the pending 485.... but the new h1b does not come with a I94 correct?

What is less riskier about being on h1b if u are already past the 6 years and are getting an extension based on pending 485? If a persons 485 gets denied is the h1b still valid? I thought its not even if u have some time left.

As far as 485 denied because 140 is revoked, I thought employers can not do that past the 180 days of 485. Is that correct? Isn't that why its ok to use AC21 and switch jobs after 180 days?

You are right, it is an USCIS error. But in real life that's not how it works - you have to go through all this.

The main reason is "when they wrote all these rules they did not think about us"

ak_2006
04-14-2009, 03:35 PM
I am in same situation now. I Completed 5 years on H1B and Planning for next H1 but my employer asking me to use EAD as he has to pay for H1B and problems in H1Bs now.

I was thinking to apply H1B and if there is any problem with H1, then use EAD. My wife is also working on h1B ( 4th year now)and has separate GC process. but we did not apply her I485. She has EAD applied on my 485.

Guys...suggest...shall I go for H1 as I am thinking or just simply use H1B.

I have concern here to use EAD...We both are in EB3 and in future if I want to start EB2 process, I may not eligible.

One of my colleagues was also in same situation and took Murthy advice. As per them maintain H1B as long as we did not get GC to our hand.

Am I correct to continue on H1? Your inputs will help me a lot.

hopelessGC
04-14-2009, 06:59 PM
I will be in the same situation in September. My 9th year H1-B extension will expire. I am seriously considering switching to EAD.

Reasons:


I am tired of paying a consulting company a huge chunk of my salary just to maintain my
H1-B.
Plus, it hurts my chances of getting promoted and moving up the ladder since consulants are never considered for any of this at an end client.
Costs more money to renew the H1-B

ak_2006
04-14-2009, 11:40 PM
I will be in the same situation in September. My 9th year H1-B extension will expire. I am seriously considering switching to EAD.

Reasons:


I am tired of paying a consulting company a huge chunk of my salary just to maintain my
H1-B.
Plus, it hurts my chances of getting promoted and moving up the ladder since consulants are never considered for any of this at an end client.
Costs more money to renew the H1-B



Thanks for sharing your situation and decision.

chanduv23
04-15-2009, 09:32 AM
I will be in the same situation in September. My 9th year H1-B extension will expire. I am seriously considering switching to EAD.

Reasons:


I am tired of paying a consulting company a huge chunk of my salary just to maintain my
H1-B.
Plus, it hurts my chances of getting promoted and moving up the ladder since consulants are never considered for any of this at an end client.
Costs more money to renew the H1-B


Ok, I have done this already and wanted to let you know that (I think you are in IT like me) in a fulltime job - things are different from being a consultant. The more you work the more responsibility and basically no escape because you are NOT a consultant. Managers LOVE the fact that you report to them as an employee - dump everything on you so that they can sleep well.
Good thing is - you will be rewarded in terms of bonuses (if any) and other benefits which offcourse you also get as a consultant based on the company you work for. You will have constant pay till you get layed off or company closes down.
In my opinion, it is a personal choice. But it is not easy to grow up the ladder as it sounds or looks from the other side.

vin13
04-15-2009, 09:48 AM
I have invoked AC21 twice. This was possible only because i was willing to use my EAD. I was able to negotiate my salary rather than talk about H1-B.

Yet i cannot say for certain what is right for anyone. If someone intents to continue with the same employer, same job, and employer has no issues extending H1-B, then they could as well get it renewed.

Since i wanted more flexibility in changing employer and also take a little different role or promotion, i found using EAD more benefitial. I had no issues traveling out of country and return back.

FinalGC
04-15-2009, 11:18 AM
Guys:

With current market conditions, I would suggest all who tread the h1 to EAD path to be very careful.

Dont get frustrated with your current situation. Working for a small consulting firm is the safest place for you. You might be thinking that the consulting firm takes more cut from your salary which you think is rightfully yours. I think your thinking is unreasonable......

Let me explain, I used to work for a Fortune 50 company and I was paid $100K salary, while they were billing me for $250/hour (which is $500K/year) for my services....isnt that too much of a margin my company took??....Guys if you do not know the reality of the market, then hope this example helps you see that....the margins are similar or higher in Fortune 500 companies as it is in small consuting firms....they all take big margins.

The advantage of staying on H1 is that the small consulting companies will never lay you off...however if you are on EAD and you are in between projects and if USCIS was to send you a RFE asking for the name of the company you work for....I am sure u will be in a dilemma.

Additionally, based on what I hear from these forums, USCIS is making undue checks, like ckecking client details that you consulted 4-5 years back....so there is a high probability of many people getting RFEs in current market situations.

If it encourages you, let me tell you that I am on my 11th year of H1 and am going to renew my H1 for my 12th through 14th year of H1. I believe I may spend more money now, but in the long run in this current economy, it is a safe bet for one to be on H1 and be working for a small consulting company.....because if you ever have an RFE or USCIS was to revoke your 485 application, you will be in big trouble.

The choice is yours to make......

However, I understand those who are forced to get into EAD (if company folds up or they get laid off). I hope the best for such people and hope they get their GC soon without any issues.

chanduv23
04-15-2009, 11:45 AM
Guys:

With current market conditions, I would suggest all who tread the h1 to EAD path to be very careful.

Dont get frustrated with your current situation. Working for a small consulting firm is the safest place for you. You might be thinking that the consulting firm takes more cut from your salary which you think is rightfully yours. I think your thinking is unreasonable......

Let me explain, I used to work for a Fortune 50 company and I was paid $100K salary, while they were billing me for $250/hour (which is $500K/year) for my services....isnt that too much of a margin my company took??....Guys if you do not know the reality of the market, then hope this example helps you see that....the margins are similar or higher in Fortune 500 companies as it is in small consuting firms....they all take big margins.

The advantage of staying on H1 is that the small consulting companies will never lay you off...however if you are on EAD and you are in between projects and if USCIS was to send you a RFE asking for the name of the company you work for....I am sure u will be in a dilemma.

Additionally, based on what I hear from these forums, USCIS is making undue checks, like ckecking client details that you consulted 4-5 years back....so there is a high probability of many people getting RFEs in current market situations.

If it encourages you, let me tell you that I am on my 11th year of H1 and am going to renew my H1 for my 12th through 14th year of H1. I believe I may spend more money now, but in the long run in this current economy, it is a safe bet for one to be on H1 and be working for a small consulting company.....because if you ever have an RFE or USCIS was to revoke your 485 application, you will be in big trouble.

The choice is yours to make......

However, I understand those who are forced to get into EAD (if company folds up or they get laid off). I hope the best for such people and hope they get their GC soon without any issues.

Thats a rather conservative approach. If you don't have a job and if USCIS issues RFE for EVL - what difference dooes it make if you HAD worked on H1b as against working on EAD? Once you lose job on h1b - if you cannot find a new one in considerable period of time - then getting a h1b transfer is also out of question because you may have to go out of the country to get it stamped.

Now coming to denial of 485. 485 gets denied PERMANANTLY only for genuine reaasons. We all know that AC21 denials have always been reversed. The recent denials that we see on the forum have been for trivial reasons like birth certificates etc... and are being reversed.

Does it make a difference if you work on h1b agaiinst working on EAD? It is a personal choice

If you manage to get a job on H1b go for it, if you manage to get a job on EAD go for it.

Remember, if 485 gets denied, your h1b or EAD will not get renewed unless it is reopened.

hopelessGC
04-15-2009, 01:09 PM
Ok, I have done this already and wanted to let you know that (I think you are in IT like me) in a fulltime job - things are different from being a consultant. The more you work the more responsibility and basically no escape because you are NOT a consultant. Managers LOVE the fact that you report to them as an employee - dump everything on you so that they can sleep well.
Good thing is - you will be rewarded in terms of bonuses (if any) and other benefits which offcourse you also get as a consultant based on the company you work for. You will have constant pay till you get layed off or company closes down.
In my opinion, it is a personal choice. But it is not easy to grow up the ladder as it sounds or looks from the other side.

My decision is from personal experience as well. I have had many opportunities where I did not get rewarded with a huge bonus or a managerial position because I was a consultant. My manager told me point blank that he can do very little to reward my hard work because I was a consultant.

I guess everyone's personal experience is different and thanks for sharing yours :)