Used EAD and lost non-immigrant status after 140 approval

N

nataraj7

Registered Users (C)
Adjudicator is not aware of AC21:
My case details:
Joined Company A on 10/2003 on non immigrant visa - H1B Approved
Company A filed Employment based Green Card using Pre Approved Labor with PD 11/07/2000. I:140 Filed on 12/19/2003 using substitute labour with PD 11/07/2000 -- I-140 Approved on July 20, 2004.
I-485 Filed on Feb 26, 2004. AP/EAD approved. While I was with Company A, my I-140 got approved and my I-485 was pending more than 181 days.

Spoke with HR of company B and they told me that I can work on EAD (AC21). On 10/2004 left Company A and joined Company B using EAD with I-485 Pending (lost non-immigrant status).
Travelled to India and returned to USA using AP (US Departure Date:02/18/2005-Arrival Date:03/14/2005) while I was with company B.
As of date my I-485 is pending (3 EAD cards and AP got approved). Lost non-immigrant status on 10/2004 when I joined company B, but after my I-485 was filed on Feb 26, 2004 with a valid EAD.

Recently had interview with USCIS Charleston office. Adjudicator is telling me that I have lost my non immigrant status since I changed employers using EAD.
Have been continuosly employed (similar job as mentioed in I140). Have all the paystubs, all W2's, all tax filing etc.
I am sure that there are so many persons like me who have used EAD to work and have lost non-immigrant status. How cases like this will be adjudicated. What is basis for cases like this to get adjudicated. Per adjudicator any person who used EAD lossed his non-immigrant status (either with same employer or new employer). What is the purpose of giving a EAD?..
 
nataraj7 said:
Adjudicator is not aware of AC21:
My case details:
Per adjudicator any person who used EAD lossed his non-immigrant status (either with same employer or new employer). What is the purpose of giving a EAD?..
Click to expand...

Yes, using the EAD with the same or different employer will invalidate the non immigrant visa. The problem now is not losing the non immigrant status, because you will lose it any way, it is the change of employer who filed your GC petition. Yes, you say it is the same carrier, the same field lab lab la. It is not what you are saying, it is what the USCIS determine if you are in the same field or not. This needs written explanation to convince them that you are still doing what the I-140 approved for. Having pay stub and taxes forms continous, still does not mean that you are in the same field. If you use EAD in any kind of job, related or not related, they will pay you, you will file tax and so on. Try to recsue your application by following the roles (I am not so familliar with) to prove that you are in the same field.
 
Using EAD does changes non-immigrant status.
But you should be safe only :
1. If you are working in the same/similar field and same/similar position.
2. If you are making more than what is mentioned on your Labor Cert.
AC21 covers this.

Get a letter from you employer stating your designation/duties/work area and Salary.This should be meet the labor cert requirements.

Consult an attorney.
BTW what was the final outcome of interview.
 
You must log in or register to reply here.
Top