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Work/Travel options after 485 : H1 Versus EAD/AP Work/Travel options after 485 : H1 Versus EAD/AP. Comparison between keeping H1 versus forfeiting H1 and using EAD/AP after 485 filing.

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  #1  
Old 11-28-2007, 07:56 PM
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Default H1 to EAD to H1...my head hurts

My head hurts from all the thinking and will hurt more after reading the responses as I know there is a LOT of different views on this. I am just SO lost on this.

background info.
PERM applied May 28, 07, approved Aug 14, 07
H1b 6th year expiring Dec 10, 07
140/485/EAD/AP concurrently applied Aug 16, 07
Received EAD
140/485/EAD/AP pending with Nebraska (sent there by lawyer) though employer is in NY so should've been sent to Texas or at least transferred by now...not so...nebraska IO (maybe not knowledgeable) said 'well it's with us, so we will process it"...we all know nebraska is slowwwww.....

My problem.
H1b 6th yr expiring in few days (dec 10, 07). Not eligible to apply for extension based on approved 140 (and god knows when that will come). Not eligible based on labor pending 365 days. Only option is to recapture travel time.

My lawyer
My lawyer is paid by me, so on my side. Has never messed up things for me once throughout my H1b and so far with PERM etc. Always seems confident and knowledgeable. Obviously not out for my money either.
I've asked him numerous times same questions...

My questions
*If I use EAD, can I get H1 extension after my 140 gets approved?
*If I use EAD till I get 140 approved, there will be a gap between when my H1 expired and when I file extension, considering that, am i still eligible for extension or is it new H1b?
*If i use EAD starting Dec 10, 07 when my H1 expires, what about my I-94? after last entry my I-94 was stamped till Dec 10, 07. Once using EAD, I will be on "adjustee" status. Have I violated/overstayed my i-94? It's not like I'll be overstaying illegally..right? I'll be on EAD/adjustee status now.

My lawyers answers to some of my questions
*I can extend my h1 after 140 is approved even though there will be a gap. It will not be a new H1b. I would however need to pick up my h1 extension/stamp by traveling out of usa and getting consular processing.
*While using EAD, i will be on Adjustee status, not H1.
* I will not be overstaying my I-94 once I go on my EAD, as I'm still legal and on ajustee status then.

My anxieties
*I have option of trying to extend my H1b right now using travel time recap of about 3 1/2 months. This will cost me about 340 filing fees plus 1000 lawyer fees (i work for nonprofit and am probably eligible for some filing fee exemptions). My lawyer has previously told me "don't worry, you will be fine, don't waste your money". He is obviously not out for my money unlike most lawyers. Although for some people this may be something to do, it is a lot of money for someone like me.
*My concern is that IF something goes wrong with my 140 and it gets rejected (filed without hard copy of labor...lucky enough my package still got accepted and receipted), then do i have to leave country same day. Or can lawyer appeal or do a MTR...will i be able to stay and continue working on my EAD until appeal is decided on.


I just don't know what to do anymore. My head hurts from all the reading I've done on this. My lawyer seems really confident that things will be ok and I will waste my money trying to extend it using recap time (it is a lot of money for me). He is confident nothing will go wrong with my 140 too. He has not once messed things up for me so far....

What would you do...please share your views, experiences with me. I need to decide soon.

Last edited by ps57002; 11-28-2007 at 08:16 PM.
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  #2  
Old 11-28-2007, 09:00 PM
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Default wow...

wonder if anyone has been in a similar situation and can share the information? it'd be helpful to know how to proceed....
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  #3  
Old 11-28-2007, 09:09 PM
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Default Use EAD

ps57002: Your attorney is very reasonable, and correct!. I dont see any sign of 140 premium coming up in next 3 1/2 months - You dont waste your hard earned money on H1B extension now. One thing though, re-fill i-9 form before your I-94 expiry date and give it to your employer. When you 140 gets approved then file for H1B extension, and get it stamped at your convenience.
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  #4  
Old 11-28-2007, 09:09 PM
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If I were you I wouldnt think a bit before using my EAD...Of course there is a chance that your I140 will not be approved but hey ask yourseleves ..what r the chances. If you have all the paper work filed in and have been a legal resident for all these years I doubt anything bad will happen..Give yourselves a chance!! Will ya.
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  #5  
Old 11-28-2007, 09:13 PM
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Default

As I understand, there is no choice.

1) You cannot extend your H1 based on Labor pending 365 days, nor can you extend based on I-140 approved.

2) 3-1/2 months of extension on H1 (based on vacation recapture) will that get you anywhere? NO. Because your labor was applied in May 2007.
Will I-140 get approved? DONT know.

3)So what was your back up?. Since in May 2007, You had not even filed for labor. So what were you going to do? your 6 years were going to expire in Dec. You are kind of lucky to be able to file 485 and getting EAD. You would have had to pack your bags otherwise.

Based on your situation, you dont have a choice but to go on EAD. You could take a chance and recapture H1 time and hope they initiate I-140 PREMIUM or just approve I-140. In which case you could then again file for 3 yr extension. IF it does not happen then you would have to use EAD anyways.

I would not spend my money, cos May 2008 is not 3-1/2 months away and I-140 is backloged. Again, later if you would like, you can extend H1 just like ur lawyer advices.

This is not to be used as legal advice, use it at your own risk.

Last edited by amitjoey; 11-28-2007 at 09:16 PM.
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  #6  
Old 11-28-2007, 09:17 PM
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Default if i were you

If I were you I would use EAD and dont worry too much about possible rejection. Dont waste money now H1 extension. Just use EAD and take things as they come .

Agree with Amit on this
"
3)So what was your back up?. Since in May 2007, You had not even filed for labor. So what were you going to do? your 6 years were going to expire in Dec. You are kind of lucky to be able to file 485 and getting EAD. You would have had to pack your bags otherwise."

Any way you were taking chances to begin with , you just got lucky with so many things.
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  #7  
Old 11-28-2007, 09:33 PM
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I would agree; sadly, there is no other way but to use EAD in your case. Stay as long as you can on H1, then file I-9 form (EAD) and enjoy THE life

All above is IMHO, call your lawyer first.
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  #8  
Old 11-29-2007, 12:25 AM
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Default Looks like something is missing here

So you guys saying if your labor is approved (less than 365 days) and I-140 is processing that means you cannot get further H1-B extenstion???????????????


Thanks
RT

Quote:
Originally Posted by serg View Post
I would agree; sadly, there is no other way but to use EAD in your case. Stay as long as you can on H1, then file I-9 form (EAD) and enjoy THE life

All above is IMHO, call your lawyer first.
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  #9  
Old 11-29-2007, 12:52 AM
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Quote:
Originally Posted by ps57002 View Post
My head hurts from all the thinking and will hurt more after reading the responses as I know there is a LOT of different views on this. I am just SO lost on this.

background info.
PERM applied May 28, 07, approved Aug 14, 07
H1b 6th year expiring Dec 10, 07
140/485/EAD/AP concurrently applied Aug 16, 07
Received EAD
140/485/EAD/AP pending with Nebraska (sent there by lawyer) though employer is in NY so should've been sent to Texas or at least transferred by now...not so...nebraska IO (maybe not knowledgeable) said 'well it's with us, so we will process it"...we all know nebraska is slowwwww.....

My problem.
H1b 6th yr expiring in few days (dec 10, 07). Not eligible to apply for extension based on approved 140 (and god knows when that will come). Not eligible based on labor pending 365 days. Only option is to recapture travel time.

My lawyer
My lawyer is paid by me, so on my side. Has never messed up things for me once throughout my H1b and so far with PERM etc. Always seems confident and knowledgeable. Obviously not out for my money either.
I've asked him numerous times same questions...

My questions
*If I use EAD, can I get H1 extension after my 140 gets approved?
*If I use EAD till I get 140 approved, there will be a gap between when my H1 expired and when I file extension, considering that, am i still eligible for extension or is it new H1b?
*If i use EAD starting Dec 10, 07 when my H1 expires, what about my I-94? after last entry my I-94 was stamped till Dec 10, 07. Once using EAD, I will be on "adjustee" status. Have I violated/overstayed my i-94? It's not like I'll be overstaying illegally..right? I'll be on EAD/adjustee status now.

My lawyers answers to some of my questions
*I can extend my h1 after 140 is approved even though there will be a gap. It will not be a new H1b. I would however need to pick up my h1 extension/stamp by traveling out of usa and getting consular processing.
*While using EAD, i will be on Adjustee status, not H1.
* I will not be overstaying my I-94 once I go on my EAD, as I'm still legal and on ajustee status then.

My anxieties
*I have option of trying to extend my H1b right now using travel time recap of about 3 1/2 months. This will cost me about 340 filing fees plus 1000 lawyer fees (i work for nonprofit and am probably eligible for some filing fee exemptions). My lawyer has previously told me "don't worry, you will be fine, don't waste your money". He is obviously not out for my money unlike most lawyers. Although for some people this may be something to do, it is a lot of money for someone like me.
*My concern is that IF something goes wrong with my 140 and it gets rejected (filed without hard copy of labor...lucky enough my package still got accepted and receipted), then do i have to leave country same day. Or can lawyer appeal or do a MTR...will i be able to stay and continue working on my EAD until appeal is decided on.


I just don't know what to do anymore. My head hurts from all the reading I've done on this. My lawyer seems really confident that things will be ok and I will waste my money trying to extend it using recap time (it is a lot of money for me). He is confident nothing will go wrong with my 140 too. He has not once messed things up for me so far....

What would you do...please share your views, experiences with me. I need to decide soon.
PS57002,

I have similar situation to yours in terms of crossing 6 years of H1B and applying of AOS this summer. I was discussing with my lawyer today on the similar lines as in your post. He said that if your I140/AOS is denied for whatever reason after your six years of H1B has passed and even though you already have extra three years of H1B extension (on the approved I140), your H1B status is also revoked as H1B status is only valid for six years and is only extended beyond that due to pending GC process. If I140/AOS is denied, H1B status is in limbo too. But he said that filing an appeal would give the individual enough time to prepare for the departure if that is what it comes to in one's case. Also, at the time of the filing of appeal, it can be decided that what was the reason for denial and what are the fair chances of an appeal succeeding.

Therefore, for you, like me, there is no other option but to switch and remain on EAD even after your I140 is approved. Hopefully your I140/AOS would get approved in the end.

Hope this helps.
Best of Luck !!
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  #10  
Old 11-29-2007, 11:59 AM
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My lawyer also told me that if after moving to EAD, I need to come back to H1B for whatever reason, it will not be counted as a new H1B i.e. not part of the annual cap.

Good to see that there is some consistency in lawyers' opinion on this part. This could be an important point for the people contemplating a move to EAD.
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  #11  
Old 11-29-2007, 12:00 PM
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Quote:
Originally Posted by Rajwaitingon140 View Post
So you guys saying if your labor is approved (less than 365 days) and I-140 is processing that means you cannot get further H1-B extenstion???????????????


Thanks
RT
That is correct. To be able to extend your H1B, you have to either have applied for your labor 365 days earlier or have an approved I-140.
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  #12  
Old 11-29-2007, 12:58 PM
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Quote:
Originally Posted by sanbaj View Post
PS57002,

I have similar situation to yours in terms of crossing 6 years of H1B and applying of AOS this summer. I was discussing with my lawyer today on the similar lines as in your post. He said that if your I140/AOS is denied for whatever reason after your six years of H1B has passed and even though you already have extra three years of H1B extension (on the approved I140), your H1B status is also revoked as H1B status is only valid for six years and is only extended beyond that due to pending GC process. If I140/AOS is denied, H1B status is in limbo too. But he said that filing an appeal would give the individual enough time to prepare for the departure if that is what it comes to in one's case. Also, at the time of the filing of appeal, it can be decided that what was the reason for denial and what are the fair chances of an appeal succeeding.

Therefore, for you, like me, there is no other option but to switch and remain on EAD even after your I140 is approved. Hopefully your I140/AOS would get approved in the end.

Hope this helps.
Best of Luck !!
I doubt that is the case. I think you can use your H1B until it expires and if you have enough time on H1B start another GC process (LC) to get more H1 extensions (Provided you are still interested in waiting for another decade )
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  #13  
Old 11-29-2007, 01:06 PM
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Quote:
Originally Posted by Rajwaitingon140
So you guys saying if your labor is approved (less than 365 days) and I-140 is processing that means you cannot get further H1-B extenstion???????????????


Thanks
RT


Quote:
Originally Posted by ashkam View Post
That is correct. To be able to extend your H1B, you have to either have applied for your labor 365 days earlier or have an approved I-140.

This is only true for H-1 extensions beyond the 6th year.

If you have completed 3 years on H-1 and want to extend for the 2nd term of 3 years, then in that case there is no connection between H-1 and GC labor / 140 status.
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  #14  
Old 11-29-2007, 01:22 PM
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ps57002,
Are you sure that you cannot extend H1. I think even though you applied for Labor in the 6th year, since it was approved you can extend H1 in 1 year increment until your I-140 is approved. After your I-140 is approved, you can extend by 3 year.

I think 365 day rule applies only if Labor is pending.

Correct me if I am wrong.

Thansk
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  #15  
Old 11-29-2007, 01:27 PM
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Quote:
Originally Posted by Sri_ View Post
ps57002,
Are you sure that you cannot extend H1. I think even though you applied for Labor in the 6th year, since it was approved you can extend H1 in 1 year increment until your I-140 is approved. After your I-140 is approved, you can extend by 3 year.

I think 365 day rule applies only if Labor is pending.

Correct me if I am wrong.

Thansk
It is 365 days since filing of labor, does not matter whether labor is approved or pending.
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