is my lawyer correct?

S

susannoise

Registered Users (C)
I am a J2 (my husbands dependant who is on J1) working on EAD (Ead expires mid march). My employer filed for an H1-B for me. A month after that my husbands employer filed for his H1-B. He didnt include me in his application for H4 as my H1-B was already filed. Now my husbands H1-B got approved (in less than 40 days, regular processing.... unbeleivable!!) while mine is still pending (I got an RFE). So I thought my status as J2 ended as soon as my husbands status changed from J1 to H1-B, and so I wont be able to work on my EAD while my H1-B is pending. When I talked to my company's lawyer, he assured me I am ok to work as I have a receipt showing that my H1-B was filed before my J2 status expired. I have some doubts about it, and am not sure of my status now. If I am not J2 anymore, what is my status? As my husband did not include me in his application for H4, I cant be an H4. Is it ok for me to keep working? What impact does it all have on my pending greean card application (which is stuck at labor certification for 2 yrs) Please share any thoughts?
 
You are right, lawyer is wrong. This period when you were not in J2 and your H1 was pending is really the issue.
Generally you can take an official break in service for immigration purposes. Convert all the salary as sign in bonus after H1 approval/status start date. You should convert your application to premium processing.
 
Hello Susan,
Your lawyer is right.
The minute the BCIS (Former INS) issues you a receipt of filling your H-1B you are OK to start work. Now that you got an RFE is just a part of the process. Your lawyer would respond to the RFE and you would be fine In the unlikely event that they deny the H-1 then upon receipt if the denial notice your lawyer can file for an H-4 based on your husbands H-1.
It was wise not to include you on your husbands H-1B as a H-4 dependent. Had your H-1B been approved before your husbands, then your status would have changed to H1 from J2, and when your husbands H1 would have been approvd your stauts would have then changed to an H-4 (last action taken rule).
J2 to H-1 to H4.
Also your current situation would have no impact on your Green Card process.
You can continue working on your receipt and getting paid no problems. If the application does get denied then you should stop working immediately.
 
Thanks for yor replies. Again the opinion is split. It seems like that there are no clear guidelines regarding this issue. My corporate lawyer says it is ok to work. my husband's immigration specialist is not sure if i should continue working. even CIS customer service is not too certain. one time when i called, they told me its ok, but next time they said no.
 
The key here is the change of status versus transfer. For all change of status you have to wait till the approval is granted. If you had asked for an earlier start date- then in many cases USCIS grants the start date (earlier than approval date). RD is not automatically start date. If you see in H1 approvals there is an effective date column. That will be your life saver.

If you have proof that you asked for the start date to be near your EAD expiry date, even if USCIS did not give you the start date you desired, you can still claim that your intentions were clearly spelled out in the application...
 
Thanks jaxen. I just checked my papers. The period of intended employment in my I-129 is from 10-1-2003 to 9-29-2006. However my application receipt date at US CIS is 10-16-2003. Does that mean when my H1-B gets approved, it will be considered effective from 10-1-2003?
 
I dont agree with Nkelkar's interpretation. Portability does not apply in this case as it is a COS from J2 to H1B.

No one is sure about what your present status is. One could say that the moment the husband changes his status from J1 to H1B, then the spouse automatically lost the J2 status. In order words the dependent's status is intrinsically linked to the principal's status. But it is not that straightforward. If that is the case, then anytime a husband extends his H1B (for example), then the wife's H4 is also extended. But we know that this is not true, and the wife has to file an I-539 in order to extend her H4 status. So the dependent spouse's status is not intrinsically dependent on the principal's status alone. One could argue that you are still in J2 status and so you can use your J2 based EAD, or you are out of status pending your H1B approval. Since in at least one of your calls to the USCIS, they said it is okay for you to work, you can exploit that you are okay working now (not legal advice).

Smartest thing would have been for you to get your H1B approved through premium processing, and then for the husband to get his H1B approved, but I realize that sometimes it is hard to time these things well.
 
Jaxen and Raj1994 are correct (which is not surprising, they've been around) although I do not sanction the work and take the pay as a signing bonus option. You can not work until the COS is approved and I-94s are issued indicating H-1B status.
 
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