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  #1  
Old 05-20-2009, 06:40 PM
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Default The Importance of Maintaining Your H-1B Status

“You don’t need to extend your H-1B status, you’ve got an EAD!” If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him. However, when someone who is seeking my advice tells me that his former attorney told me this, I cringe. Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status? Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in...

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  #2  
Old 05-20-2009, 09:31 PM
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Good post
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  #3  
Old 05-20-2009, 10:43 PM
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Default

From what I understand, if you have an H1b extended based on your Labor or I140 approval, if your I485 is denied, all applications/extensions based on your Adjustment of Status also expire.

From the lawyers' perspective, all of them promoting H1bs is more a business push than a 'favorable situation for the applicant' push.
Most EAD/AP applications/renewals are now filed by applicants directly, whereas H1Bs go thru the lawyers.

But keeping the moolah part aside, why would an EAD be invalid whereas a H1b be valid, when both are based on the Green Card application?
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  #4  
Old 05-20-2009, 11:12 PM
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Default

Quote:
Originally Posted by browncow View Post
From what I understand, if you have an H1b extended based on your Labor or I140 approval, if your I485 is denied, all applications/extensions based on your Adjustment of Status also expire.

From the lawyers' perspective, all of them promoting H1bs is more a business push than a 'favorable situation for the applicant' push.
Most EAD/AP applications/renewals are now filed by applicants directly, whereas H1Bs go thru the lawyers.

But keeping the moolah part aside, why would an EAD be invalid whereas a H1b be valid, when both are based on the Green Card application?
Because there are no clear regulations around what happens to H1 if I-485 gets denied. But there are existing regulations that EAD becomes invalid. So being on H1 gives you an edge. You will not able to extend/transfer H1 but there is no effect on existing approved h1.

Also even if you use EAD you can actually get back on H1 status without being counted against the quota as long as your I-485 is pending. But you will need to go out and get H1 stamped and re-enter. In this particular case, since father was primary applicant he could have sponsored new H1 w/o I-94 and get it stamped and re-enter. Not sure why lawyer did not suggest that.
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  #5  
Old 05-21-2009, 01:33 AM
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Default This is a special case

The example he has given is a special case. The guy needs H1, because his son was out of status. Something is missing in the case. The child came to US 10 years back on B2 and stayed on B2 forever without extending or changing the status???

We need H1 only when we are not married or we have not filed I-485 for the dependants.
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  #6  
Old 05-21-2009, 01:45 AM
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H1 doesn't get invalidated on a 485 rejection, even if it was approved beyond 6 year based on the pending 485. You just may not be eligible for another extension.

Quote:
Originally Posted by browncow View Post
if your I485 is denied, all applications/extensions based on your Adjustment of Status also expire.
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  #7  
Old 05-21-2009, 02:18 AM
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Default

Quote:
Originally Posted by morchu View Post
H1 doesn't get invalidated on a 485 rejection, even if it was approved beyond 6 year based on the pending 485. You just may not be eligible for another extension.
well, USCIS issues EADs based on filed appeals/MTRs, so H1B is not the only solution.
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  #8  
Old 05-21-2009, 12:19 PM
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Quote:
Originally Posted by browncow View Post
well, USCIS issues EADs based on filed appeals/MTRs, so H1B is not the only solution.
browncow, thats what I heard from IO in info pass that we can file EAD when appeal/MTR is pending with uscis and I485 is in denied status. Do you know that any has got EAD based on the above scenario?

Thanks
Raj
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  #9  
Old 05-21-2009, 01:31 PM
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Quote:
Originally Posted by pappu View Post
Good post
Pappu, Can this post be moved to "Ask lawyers" area of forum to get other lawyers opinion as well?

I've seen many companies trying their best to convince their employees to use their EAD instead of paying 10 times more for the H1B extension. This is very valid from company's stand point.

But it will be helpful for fellow immigrants to know exactly what they are getting into when they decide to when they abandon their H1B visa.
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  #10  
Old 05-21-2009, 01:46 PM
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Default

Quote:
Originally Posted by cableching View Post
The example he has given is a special case. The guy needs H1, because his son was out of status. Something is missing in the case. The child came to US 10 years back on B2 and stayed on B2 forever without extending or changing the status???

We need H1 only when we are not married or we have not filed I-485 for the dependants.
I agree. This was a special case and the attorney initially filling the 485 should have caught this error.
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  #11  
Old 05-21-2009, 02:05 PM
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Default Carl, Can a new H1 be applied for him now?

Question to Carl:
Can a H1 be applied for the father now? (If he has I140 approved, would this new H1 be cap exempt?) There by all his family can avail the dependent H4 and be together?
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  #12  
Old 05-21-2009, 02:12 PM
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how to start a new thread?
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  #13  
Old 05-21-2009, 06:07 PM
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This is a very very special case, and using this case to prove the need for maintaining H1 is very shaky.
If the one without valid status is an adult, leaving country will be no good because of the 10+ years out-of-status will lead to a huge bar of visa. So the only point is: the person happen to be under 18 and could have used that to avoid the visa bar. But, HOW MANY PEOPLE HAVE A CHILD THAT HAS BEEN OUT OF STATUS FOR 10+ YEARS ???
What's the good of paying to get an edge that you are never going to use? Of course, I definitely see it is good for the lawyer, since applying for H1 is almost 10 times more costly than applying for EAD!

Quote:
Originally Posted by Blog Feeds View Post
“You don’t need to extend your H-1B status, you’ve got an EAD!” If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him. However, when someone who is seeking my advice tells me that his former attorney told me this, I cringe. Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status? Consider this real life example: Last week, an Indian professional had a legal consultation with me. He had been in...

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  #14  
Old 05-21-2009, 08:52 PM
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Default

Very good post and the answer is in the last part:

"the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful “nonimmigrant” status while their application for adjustment of status is pending."

I am not sure what what "renew 485" means though.
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  #15  
Old 05-21-2009, 11:23 PM
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Quote:
Originally Posted by saileshdude View Post
Also even if you use EAD you can actually get back on H1 status without being counted against the quota as long as your I-485 is pending.
Saileshdude,

Can you eloborate more on this? My understanding is that once you use EAD, H1 is gone for good. And particularly How one can revert back to H1 if EAD is used to join different employer?
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