New H1 application means abandoning I485?

R

Reza-EB2 NIW

Registered Users (C)
Dear Friends,
I have a pending 485 application (EB1-EA), and entered the USA last month on Advance Parole. Since I am still with the same company who sponsored my H1 application, then I am still considered to be on H1 status.

Starting Aug, I will move to a new company. I have asked them to apply for my H1 transfer. I just want to have the new H1 approval, so that I can leave and come back based on the H1 visa. It is better for me if i decide to marry.

A lawyer has told me that if I apply for my H1 transfer, this means that I am abandoning my 485 application. Is this a true statement?

I remember some folks in here were talking about doing this. Please share with me your experience.

Thanks
RSY
 
folks,
I appreiate your comments if you know about my question.
If I want to rephrase my question: If you apply for a new H1 application while having I-485 is pending, does this mean abandoning your immigration petition?

Thanks
RSY
 
I believe that if you enter on AP means that you are not in H1 anymore.
Moreover, according to my understanding of the process you need to have EAD to work.
 
I-485 and H1

Reza-EB2 NIW said:
Dear Friends,
I have a pending 485 application (EB1-EA), and entered the USA last month on Advance Parole. Since I am still with the same company who sponsored my H1 application, then I am still considered to be on H1 status.

Starting Aug, I will move to a new company. I have asked them to apply for my H1 transfer. I just want to have the new H1 approval, so that I can leave and come back based on the H1 visa. It is better for me if i decide to marry.

A lawyer has told me that if I apply for my H1 transfer, this means that I am abandoning my 485 application. Is this a true statement?

I remember some folks in here were talking about doing this. Please share with me your experience.

Thanks
RSY
Click to expand...

I may be wrong but here is what I understand:
I-485 petition is adjustment of status to permanent resident. This means that H1B will be a fall back so long as you are with the company that filed for I-485 and the same is pending. Once you had used your Advance Parole (which BTW was approved based on your pending I-485) that means you have abandoned your H1 status. At this point one will not be able to apply for H1 transfer. Of course, one can only apply for new H1. But this is a new H1 - one has to return to the home country and get H1 Visa stamped for re-entry.

Alternately - one can use Advance Parole to return and EAD to work.

As mentioned, this is per my understanding only. You need to consult an attorney for clarifications and confirmations.
 
I have searched a lot about H1 and AP, and came to this conclusion that using AP does not invalidate H1 status as long as you work for the same company or institute.
It looks like when you change your job, then you need to use EAD. However I am not sure about this and wondering if somebody can provide some more info.
If the above is true, do you guys still think that I can apply for H1 transfer? or should I ask for a new H1 application?
Thanks
RSY
 
Reza-EB2 NIW said:
I have searched a lot about H1 and AP, and came to this conclusion that using AP does not invalidate H1 status as long as you work for the same company or institute.It looks like when you change your job, then you need to use EAD.
Click to expand...

You don't need to use the EAD; the new employer could petition for an H-1 or an L-1 if you qualify.

There's really no such thing as an H-1 "transfer"; it's merely a parallel H-1 petition.
 
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