After 6 Yrs of H1B, which is better EAD or H1B extension?

hr0803

Registered Users (C)
Hello,

After completing 6 years working in H1B visa, which mode of employment is good?
Going on EAD or applying H1B extension and still be on H1 visa?

Because people say EAD is risky, if 485 is denied or anything happens to GC process.
But even on H1B extension, if the 485 is denied or stuck with the GC process, its illegal to be working in the country with the extended H1B visa right? Because H1 is extended based on your adjustment of status only (485), and if that itself is denied, then you can't stay here working on H1B correct?

So I feel like after 6 years of working on a H1B visa, it does not matter whether you are on H1 or EAD..

Gurus, Please advise.. I may be wrong or dont know the usefulness of being on a extended H1B visa.
 
I am also in the same boat and wondering whether it's really worth extending H1b and shedding another $4k+

Gurus, enlighten us on this.

GC04
 
Do you intend to change job? Are you subject to the per country visa limits? Are you qualified for the post 6 years H-1B extension in 3 years increment?
 
hr0803 said:
But even on H1B extension, if the 485 is denied or stuck with the GC process, its illegal to be working in the country with the extended H1B visa right? Because H1 is extended based on your adjustment of status only (485), and if that itself is denied, then you can't stay here working on H1B correct?

No, the H1 is based on the fact that you have a GC application pending, not the I-485. So long as the LC or I-140 have not been revoked by USCIS, even if the I-485 fails the basis for the H-1 remains valid.

The biggest question is wether you want to pay all of the fees for an H-1 renewal and typically use an attorney, whereas the EAD can be done yourself for less money and allows you to work anywhere.
 
TheRealCanadian said:
No, the H1 is based on the fact that you have a GC application pending, not the I-485. So long as the LC or I-140 have not been revoked by USCIS, even if the I-485 fails the basis for the H-1 remains valid.

The biggest question is wether you want to pay all of the fees for an H-1 renewal and typically use an attorney, whereas the EAD can be done yourself for less money and allows you to work anywhere.


Once the I-485 is denied the Green Card process is totally stopped . I would think that if I-485 is denied then you lose your h1-B extension.

If what RealCanadian Said would have been true then does that mean if I-485 is denied and I-140 and labor have not been revoked then a person can keep on extending his H1-B indefinitely.

Ginnnu , UnitedNations please comment...

Thanks
 
IL_LABOR said:
Once the I-485 is denied the Green Card process is totally stopped . I would think that if I-485 is denied then you lose your h1-B extension.

If what RealCanadian Said would have been true then does that mean if I-485 is denied and I-140 and labor have not been revoked then a person can keep on extending his H1-B indefinitely.

Ginnnu , UnitedNations please comment...

Thanks


NO.. all it means is that if your 485 is denied and u have a H1-B you are legally allowed tostay in the country untill your H1-B expires. In case u don't have an H1B and are working on EAD, denial of 485 will make you "out of status" immediately.
My understanding is h1b is not revoked automatically as soon as 485 is denied even if the H1B was approved based on I140/LC.
 
IL_LABOR said:
Once the I-485 is denied the Green Card process is totally stopped . I would think that if I-485 is denied then you lose your h1-B extension.

Just because the I-485 is denied doesn't mean the Green Card process is totally stopped. I-485s can get denied for all sorts of reasons that aren't fatal to immigration. Let's say that the I-485 benficiary was out of status for >180 days (losing 245k relief) but not subject to the re-entry bars. In such a circumstance, they would need to do consular processing but their GC process would remain perfectly alive.

if I-485 is denied and I-140 and labor have not been revoked then a person can keep on extending his H1-B indefinitely.

Since there's no case law that I'm aware of I cannot make a definitive answer, but there appears to be nothing in the law or memoranda to prevent it.
 
I have completed 6 years just two days before and started working on EAD. My 140 was approved and my 485 is pending more than 10 months. After my extensive analysis, I found that extending h1b is useless, if you already filed 485 and 140 was approved.

First of all CIS may not approve 3 year AC 21 extension, if you have already filed 485. They are giving H1B extension (whether it is a AC21 exten or 7th year) just to maintain non-immigrant status, till you file 485. The extension is either based on pending LC/140 for 7th year extension or based on approved 140 for 3 year extension,(unavailability of visa due to retrogression to file 485). One maynot claim H1B extension based on 485 pending. However it is not a written law.

However, you can request 3 year extension based on approved I-140. They may give it. Legally speaking, if your 485 was denied (it is very rare case like if you were on out of status for long time or criminal history or terrorist link), and you have completed 6 years in H1B, you are still considered as out of status. The H1B is invalid from that point. Your legal status will not be protected by maintaining the H1B if you have crossed 6 year limit. However it wont stop your GC process.

One can give up the H1B, if 140 was approved and 485 was pending more than 6 months. In this situation, working in EAD is cost effective, risk free, and mainly gives flexibility.

I found an answer for this question from an Attorney

My I-140(EB2-India) was approved. My I-485 is pending more than 9 months and affected by retrogression. I have a vaild EAD, not yet used. Now, my 6th year H1B will be expiring within next 10 days. In this situation, I have the following doubt.

Is there any advantage in extending H1B by 3 years beyond six years (AC21 one time extension after I-140 approval), if I-485 was already filled and subsequently retrogressed due to unavailability of visa numbers? In other words, Will the 3-year extension (beyond six years) of H-1B protect the legal status of any individual, in case of I-485 denial? Is there any benefit in working in H1B rather than EAD, if 140 was approved and 485 is pending due to retrogression? OR Extending H1B for me, is a waste of money?

A: Personally, I would just go over to the EAD, but there is nothing wrong with extending your H status if you don't mind spending the money. I really don't see anything that it will give you, however.
 
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Just to update - I did get my H1 extended (AC 21) for 3 yrs beyond 6 years.

That said, I also don't see any need to spend that money on H1 if you have an EAD. Although I had to do it because my wife is on H4.

Good Luck

can_card said:
I have completed 6 years just two days before and started working on EAD. My 140 was approved and my 485 is pending more than 10 months. After my extensive analysis, I found that extending h1b is useless, if you already filed 485 and 140 was approved.

First of all CIS may not approve 3 year AC 21 extension, if you have already filed 485. They are giving H1B extension (whether it is a AC21 exten or 7th year) just to maintain non-immigrant status, till you file 485. The extension is either based on pending LC/140 for 7th year extension or based on approved 140 for 3 year extension,(unavailability of visa due to retrogression to file 485). One maynot claim H1B extension based on 485 pending. However it is not a written law.

However, you can request 3 year extension based on approved I-140. They may give it. Legally speaking, if your 485 was denied (it is very rare case like if you were on out of status for long time or criminal history or terrorist link), and you have completed 6 years in H1B, you are still considered as out of status. The H1B is invalid from that point. Your legal status will not be protected by maintaining the H1B if you have crossed 6 year limit. However it wont stop your GC process.

One can give up the H1B, if 140 was approved and 485 was pending more than 6 months. In this situation, working in EAD is cost effective, risk free, and mainly gives flexibility.

I found an answer for this question from an Attorney

My I-140(EB2-India) was approved. My I-485 is pending more than 9 months and affected by retrogression. I have a vaild EAD, not yet used. Now, my 6th year H1B will be expiring within next 10 days. In this situation, I have the following doubt.

Is there any advantage in extending H1B by 3 years beyond six years (AC21 one time extension after I-140 approval), if I-485 was already filled and subsequently retrogressed due to unavailability of visa numbers? In other words, Will the 3-year extension (beyond six years) of H-1B protect the legal status of any individual, in case of I-485 denial? Is there any benefit in working in H1B rather than EAD, if 140 was approved and 485 is pending due to retrogression? OR Extending H1B for me, is a waste of money?

A: Personally, I would just go over to the EAD, but there is nothing wrong with extending your H status if you don't mind spending the money. I really don't see anything that it will give you, however.
 
I also just switched to EAD... does that mean my family who is on H4 remain legal on AP or they are not Legal....

What happens to Family member wh oare on H4 when the Primary switches to EAD from H1

Please advice.Thanks in Advance.
 
here is my understanding ..

As far as my understand - all your H4 dependants may go out of status if you are the primary H1B holder. Good to get others views too ...
 
kudos!!!!, fellas great to have a guy like UN here, even RK can't give you those many

scenarios after paying
unitednations said:
The conventional wisdom would say that if I-140 is approved and 485 is pending more then 180 days that you wouldn't need h-1 any longer.

However; many people contact me and have gotten themselves caught in the most screwed up scenarios. Therefore, if any of these scenarios are even remotely possible to your case you may want to consider staying on h-1:

1) If you are single and your six years on h-1 is passed. If you get married to a person who is not a permanent resident or u.s. citizen then you wouldn't be able to bring him/her to USA on h-4 and they would have to go consular route which would require your priority date to be current and then tack on a 6 more months to get him/her here to usa.

2) If you received less then the labor wage at any point from the priority date of the labor. USCIS has gone back and revoked approved I-140's stating they were approved inappropriately. If your six years on h-1 is expired then you have no protection to stay here.

3) If you used a labor that was filed in a fast processing state. DOL in adjudicating backlog labors is doing existence checks on companies in the "fast processing states" and denying pending labors. USCIS has the right to invalidate labors and thus cause problems in even approved I-140's. Once again no h-1 then you are out of luck.

4) Even if it is your own labor; i've seen USCIS revoke approved I-140's becuase they stated it was approved in error because of education mismatch.

5) I've seen a case where person got denied 485 because their approved I-140 labor was used by someone else and company never appropriately revoked it for the other person. Person all along thought it was his own original labor and found out that it wasn't.

6) You have better protection on h-1 to get paid prevailing LCA wages. This protection doesn't exist on EAD.

7) It is possible that if you get 3 year extension it would be cheaper then EAD's. Technically if it is the third h-1 being filed with the same company then h-1 USCIS cost is only $190.

For those people whom USCIS revoked I-140's for due to errors in ability to pay or education mismatch; they were originally approved a few years ago when USCIS wasn't very strict. However, as they changed their policies and procedures they started to apply the tougher standards to already approved I-140's. We don't know how long retrogression is going to last and it is possible that as more memos come out; regulations change; what is relevant now which has helped you may hurt you later and cause problems on I-140's.

For example: revocation of I-140's by company and still getting greencard with 485 pending more then 180 days contradicts the law that you have to have an approved I-140 at the time of getting 485 approved.

No priority date if I-140 is revoked. No I-140 priority date then what is your place in line for visa dates?

I don't want to scare people but this immigration stuff is just crazy and the scenarios I mentioned above is obviously a small, small % of the cases but everyone tells me they want to know the risks and how to mitigate it. At least if you know of the possible risks you have more information to make better decisions.
 
unitednations said:
The conventional wisdom would say that if I-140 is approved and 485 is pending more then 180 days that you wouldn't need h-1 any longer.

2) If you received less then the labor wage at any point from the priority date of the labor. USCIS has gone back and revoked approved I-140's stating they were approved inappropriately. If your six years on h-1 is expired then you have no protection to stay here.

What if the company had ability to pay full labor wage inspite of what they were actually paying? There is a rule saying that approved 140 cannot be revoked by USCIS if the person is already in USA?

For example: revocation of I-140's by company and still getting greencard with 485 pending more then 180 days contradicts the law that you have to have an approved I-140 at the time of getting 485 approved.

Did not Yates memo address this issue. I think it clearly said that 140 remains valid after 180 days even if revoked by employer? Ofcourse it does contradicts the original law but at the same time takes meaning out of AC21 law.

No priority date if I-140 is revoked. No I-140 priority date then what is your place in line for visa dates?

But Yates Memo in 03 and 05 crearly speak about PD's after 180 days on 485? Did any LAW address this issue specifically?
 
Sanan said:
Just to update - I did get my H1 extended (AC 21) for 3 yrs beyond 6 years.

That said, I also don't see any need to spend that money on H1 if you have an EAD. Although I had to do it because my wife is on H4.

Good Luck
Had your I485 been pending when you requested post H-1B extension in 3 years increment? What documentation did you provide to support your petition and from which Service Center?
 
Yes it was. Not sure which all documents my Lawyer sent. It was at Vermont

immiq said:
Had your I485 been pending when you requested post H-1B extension in 3 years increment? What documentation did you provide to support your petition and from which Service Center?
 
unitednations said:
Here is an example of an I-140 rfe.

Note: the way the company answers would obviously effect people who have already received I-140 approvals and may have used ac21.

You may be gone from the company but everytime a company files another h-1b or labor cert. or I-140; if USCIS/DOL find an issue with the subsequent filings they can dig further and affect your case.

Note: in the RFE e31/e32 are people who already got the greencard.

That is some RFE!!

:confused: In my case, my former employer already revoked the 140 approved for me after I used 180 rule to change. Supposing the company keeps applying for 140's raising eyes at USCIS and supposing USCIS find something wrong, how will USCIS revoke my 140 which has already been revoked?
 
amazing..

In nutshell, the ability and quality of employer determines one's green card journey, even after that too. The list of situations UN mentioed here is very scary, though it is a remote chance. Therefore, the uncertainity persists till one gets card, even after too, depends on the employer's credential. I never imagined CIS askes photographs of the building. Therefore one has to very carefull in joining the bodyshoppers.

I have a one simple question to UN. I understand that H1B protects, in the number of situations listed. I think H1B protects , if any one is still within 6 year limiting period, as one has a right (?) to enjoy H1b upto 6 years. Further stay granted based only on, any underlying immigration related (appealable) petition. If 485 is denied, (denial of 485 is not appelable, unless it was denied based on 140 denial/revokation) and one he is staying after 6 years, the H1B will be invalid at that point. USCIS may have a cross data base, based on A number to cancel all applications once 485 is denied. Have you seen such situation, though I doubt?
 
can_card said:
If 485 is denied, (denial of 485 is not appelable, unless it was denied based on 140 denial/revokation) and one he is staying after 6 years, the H1B will be invalid at that point.

Again, a 7th year H-1B extension is not based upon the status or existence of a pending I-485 petition. The I-485 denial should not affect the 6th year H-1B in any way, unless as part of the denial USCIS decides that the I-140 was approved because of fraud and yanks that as well.

Now that might be possible in these circumstances, if the job offer was not bona fide. But a denied I-485 does not kill the 7th year H-1B automatically, any more than withdrawing one's I-485 and opting for Consular Processing would.
 
If 485 is denied solely based on deficency in the 485 issues, then the h1b will not protect the legal status, if any one stays after 6 years.

Here is the answer for my question by Mr Oh

Q-30 (01-02-2006): In the severe immigrant visa retrogression climate, is it advisable to maintain non-immigrant status till we get I-485 approval? I am an Indian national. My PD is May 2005. My 140 (EB-2) was approved and 485 is pending. I have a valid EAD. My Current H1B status expires in February 2006. Some of my friends are advising me to file a 3-year H-1B extension due to visa retrogression and not to work on EAD. Is it advisable to extend 3 year H1B, based on the very lengthy waiting period due to my PD? Or is it a waste of money? What are the potential chances for the denial of 485? Will the 3-year extension of H-1B protect the legal status of any individual in case of I-485 denial? A-30: The EB-485 waiters have an option of working in either H-1B or L-1 or EAD. The benefits on working on H-1B or L-1 rather than EAD pending I-485 are evident for those who are eligible for extension of H-1B within the 6-year limit or in the 5-year limit of L-1B or in the 7-year limit of L-1A. The benefits includes, among others: Even if I-485 is denied, the alien can keep staying and working in H or L visa status and retry the green card proces. When one works on EAD and I-485 is denied, the alien instantly falls into unauthorized alien status. Besides, even if the alien has another opportunity to apply for H-1B or L visa status or green card, he or she will not be able to do it as the alien is no longer in nonimmigrant status. The second benefit involves those I-485 waiters whose I-485 has been denied not on the I-485 issues but because of the denial of underlying I-140 petition. In this case, if the alien has worked on H-1B rather than EAD, the alien can keep extending the H-1B or L-1 status pending the appeal of denial of I-140 petition before the AAO. Once the alien's employer wins in the I-140 appeal, the USCIS usually reopens voluntarily or on the motion of the alien the denial of I-485 application and continues the adjudication of the previously denied I-485 application. This second benefit is not available for those aliens whose I-140 has already been approved because in all likelihood, I-485 will be denied on the I-485 issues rather than I-140 issues. Denial of I-485 is not appealable and the alien falls into unathorized alien status instant to the denial of I-1485 application. There can one situation wherein such alien can still benefit from the maintaining H-1B status within the 6-year limit. If the alien is eligible for 245(k) benefit of eligibility for another I-485 application inasmuch as unauthorized stay was less than 180 days or unauthorized employment was less than 180 days since the lastest admission to the United States, the alien can try another I-485 application if the denial of previous I-485 can be overcome or the new I-485 is filed on a separate labor certification application or I-140 petition. Sometimes, people try a motion to reopen of I-485 denial, but another option is filing a new I-485 application inasmuch as one has maintained a valid nonimmigrant status or is eligible for 245(k) benefits. The aforementioned benefits are not available to the aliens who are in the 7th-year extension or three-year increment extension of H-1B as the USCIS is authorized to grant such AC-21 extension "only pending" adjudication of the underlying application (labor certification application or I-485 application) or petition (I-140 petition). Once such underlying application is denied, it loses the grounds for AC-21 H-1B extension benefits.
 
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