AC 21 while I-140 pending

[RK09]

Can I switch employers using AC 21 while my I-140 is still pending approval?
If yes, can I use my EAD or need to go thru a H1B transfer?

I-140 ND July 13, 2007 (pending approval)
I-485 ND September 27, 2007
EAD valid till September 2010
H1B valid till June 2010

I tried to speak to my attorney but could never reach him. So, I spoke to the case officers at USCIS but I am in a flux as one officer said that I can use my EAD and the other said I need to transfer my H1B.

Please advice the better option. Thanks in advance for any responses.

[ginnu]

Originally Posted by RK09

Can I switch employers using AC 21 while my I-140 is still pending approval?

------------------Change employer AFTER I-140 gets approved.dont take risk at this time.

If yes, can I use my EAD or need to go thru a H1B transfer?

I-140 ND July 13, 2007 (pending approval)
I-485 ND September 27, 2007
EAD valid till September 2010
H1B valid till June 2010

I tried to speak to my attorney but could never reach him. So, I spoke to the case officers at USCIS but I am in a flux as one officer said that I can use my EAD and the other said I need to transfer my H1B.

Please advice the better option. Thanks in advance for any responses.

-----------

[RK09]

Thanks ginnu - for the quick response.

I finally got to speak to my lawyer today and he said that technically i can't use AC 21 until my 140 is approved and told me to hold on. But, I have a complicated situation - My current employer is a consulting firm and does not have a contract for me to work at this time (i've been out of job for over couple months without pay). My lawyer said that if I am desperate, go ahead and use the EAD to work for any employer but make sure my current employer keeps the job offer open until I get my AOS approval and at some point in time I have to come back and work for them. I don't know how all of this plays out but I surely need a paying job at this time. Ofcourse, I don't want to mess with the process but don't seem to have a choice. So may be, I'll try to convince my current employer to continue my GC process while I take up a full time job with another employer until I/they find a contract position and eventually come back and work for them. I hope this works. "GC process sucks the life out"

[ginnu]

Originally Posted by RK09

Thanks ginnu - for the quick response.

I finally got to speak to my lawyer today and he said that technically i can't use AC 21 until my 140 is approved and told me to hold on. But, I have a complicated situation - My current employer is a consulting firm and does not have a contract for me to work at this time (i've been out of job for over couple months without pay). My lawyer said that if I am desperate, go ahead and use the EAD to work for any employer but make sure my current employer keeps the job offer open until I get my AOS approval and at some point in time I have to come back and work for them. I don't know how all of this plays out but I surely need a paying job at this time. Ofcourse, I don't want to mess with the process but don't seem to have a choice. So may be, I'll try to convince my current employer to continue my GC process while I take up a full time job with another employer until I/they find a contract position and eventually come back and work for them. I hope this works. "GC process sucks the life out"

1 you should move only after I-140 gets approved.
2 if your current employer is unable to pay you now (project or no project) then how he will be able to pay you after GC?? (USCIS at this time tries to find out about the LC filed by employers or I-140 filed by employers if employer is paying the employee. If they find out that your employer cant pay you they can deny I-140 after asking the ability to pay from your employer.

3 if you still feel that you should move to new employer then request your current employer not to Cancel the I-140 that is pending or revoke if it gets approved.

4 join the new employer with H1 transfer .if your I-140 gets denied then I-485 EAD ,AP also get denied. If you use EAD and I-140, I-485 gets denied then you will NOT have any status. But if you join new employer with H1 transfer you will be on H1 Status (if H1 valid at the time I-485 gets denied)
5 you will have problem for H1 transfer, as you don’t have recent pay stubs (if your current employer is ready to give you 2-3 latest Pay stubs then new employer can file H1 transfer)

6 your current employer is violating H1 law/regulation by not paying you. On H1 Bench is NOT allowed employer must pay the wages according to LCA that was filed for H1.

[RK09]

Thanks again for the valuable advice. Kudos to this forum. It's a great service.

I will try to follow the steps you have mentioned by consulting with my employer.

Also, I happened to use my AP for travel this year, would that mean I am on EAD. If yes, can I transfer from EAD to H1?

First term H1b term expired May 2008.
Second term renewed and valid till June 2010. (no visa stamp)

[ginnu]

Originally Posted by RK09

Thanks again for the valuable advice. Kudos to this forum. It's a great service.

I will try to follow the steps you have mentioned by consulting with my employer.

Also, I happened to use my AP for travel this year, would that mean I am on EAD. If yes, can I transfer from EAD to H1?
-----------------After use of AP if you have H1 approval of your current employer you are on H1 status and can also file H1 extensions.(USCIS has MEMO for this)
First term H1b term expired May 2008.
Second term renewed and valid till June 2010. (no visa stamp)

best option for you at this time is to stick with present employer and he should pay you according to LCA. you dont have I-140 approved, you dont have Pay stubs and you also used AP and if new employer file H1 then H1 approval will not have I-94 attached and you need to go out of US and get Visa stamp and then enter on H1 status.
Your case is not like a person who has only one disease and doctor can give medicine for particular disease. Your case has multiple symptoms and multiple diseases. The only cure is I-140 should be approved AND current Employer must pay you.

[kartakash]

Holy Molly..I love people taking this much risk like RK09. I am sailing in the same boat with my I-140 pending since 2 years caught in a background check. My employer is supporting me to wait till the I-140 is approved. If you don't wanna stay here then take all these risks to keep the money meter running. This whole GC thing is soo frustrating. I am sick and tired of this wait and can't do anything