Nadi,
She used EAD for employer B not with employer A who sponsered her H1B. I doubt she is in status now. Murthy mentioned in one of her chat session even though if u have valid I-94 if your 485 is denied then you are out of status.
Also for sp05, if 140 reopened does not mean that his/her AP/EAD valid. It remains invalid intil 140 approved.
Chat User : Can a person on AOS (nine months) using EAD to work, file H-1 again if the I-485 gets rejected due to a revoked I-140?
Attorney Murthy : Although a person may file the H1B again, if the person's H1B lapsed, then s/he cannot file an extension with the BCIS. The person is required to file for the H1B petition approval and then travel abroad and possibly apply for the H1B visa stamp at the consulate to reenter in valid H1B status. The BCIS has been denying these cases when the person was in AOS status in the interim, though it does not seem fair since AOS and H1B are supposed to demonstrate immigrant and nonimmigrant intentions which are consistent with the dual intent of H1Bs and L-1s and their dependents.
Chat User : Thanks for your great service. I'm off H1B. How long can I be out of status before I can apply for H-4?
Attorney Murthy : There is no legal "grace period" for a person after being terminated, laid off, or otherwise no longer working with the H1B-sponsoring employer. The BCIS may, in its discretion, allow about a 2-week lag, but has the right to deny the COS from H1B to H-4, even based on a few days' gap.
Chat User : Can H-4 dependents get back into status by going out of the country or do they need to go back to the home country and get a new visa?
Attorney Murthy : As long as the H-4 dependent was not unlawfully present for over 180 days, mere departure and reentry from another country (other than Canada or Mexico, unless the trip is longer than 30 days) may be sufficient to enable the person to get back into status upon obtaining a new I-94 card on entry. However, if the person was unlawfully present for even a day, the person is required to obtain a new visa stamp in the passport since any earlier visa stamp is deemed void and the person is required to apply for a new visa stamp in the home country only.
Chat User : What are the options if someone's H1B EOS is denied? Thanks.
Attorney Murthy : Generally, the person is required to travel abroad and reenter in a manner to obtain a new I-94 card. This assumes that the person did not stay beyond the date noted on the I-94 card. If a person overstays the date noted on the I-94 card, then the person is required by law to apply for a new visa stamp at the consulate abroad in the home country and may not apply for a visa in any other country in the world under law.
Chat User : Is it possible to go back to H1B while working on EAD? H1B (only used 3 yrs) expired on March 2003. Just want to know whether this option is still open or not.
Attorney Murthy : The BCIS takes the position that a person cannot file an extension of the H1B status after having been on EAD and after the H1B has expired. However, it should be possible to file the H1B with consular notification and then travel abroad, apply for a new H1B visa stamp at the consulate, and reenter on H1B status with the new I-94 card. There is a risk, though, that the BCIS may consider the person to have violated status based on submitting the old I-94 card upon departing the U.S., since the data entry clerk may not focus on the issuance of the AP, etc. Accordingly, the burden will lie with the H1B beneficiary to retain proof of having filed the I-485 with the AP and EAD to demonstrate having maintained lawful status throughout in the U.S.
Chat User : Hi. Is it legal for me to work while my EAD is expired (I applied for an EAD renewal a month before its expiry)? Is it legal to do an H-1 transfer at this state?
Attorney Murthy : The law states that if the EAD has expired, the person is not legally allowed to work until the new EAD is issued by the BCIS. If the H1B has not yet expired, then one may file an extension of the H1B petition and keep working while the extension of status is pending with the BCIS.
Chat User : Can a person working on EAD go back to H1B? Previous H1B status was not maintained, but H1B is not expired.
Attorney Murthy : Yes, that is possible. That may require the person to travel abroad and reenter using the prior H1B approval notice and the visa stamped in the PP, to enter on H1B status. The BCIS will not approve an extension or change of status from within the U.S., based on their latest interpretation of the law.
She used EAD for employer B not with employer A who sponsered her H1B. I doubt she is in status now. Murthy mentioned in one of her chat session even though if u have valid I-94 if your 485 is denied then you are out of status.
Also for sp05, if 140 reopened does not mean that his/her AP/EAD valid. It remains invalid intil 140 approved.
Chat User : Can a person on AOS (nine months) using EAD to work, file H-1 again if the I-485 gets rejected due to a revoked I-140?
Attorney Murthy : Although a person may file the H1B again, if the person's H1B lapsed, then s/he cannot file an extension with the BCIS. The person is required to file for the H1B petition approval and then travel abroad and possibly apply for the H1B visa stamp at the consulate to reenter in valid H1B status. The BCIS has been denying these cases when the person was in AOS status in the interim, though it does not seem fair since AOS and H1B are supposed to demonstrate immigrant and nonimmigrant intentions which are consistent with the dual intent of H1Bs and L-1s and their dependents.
Chat User : Thanks for your great service. I'm off H1B. How long can I be out of status before I can apply for H-4?
Attorney Murthy : There is no legal "grace period" for a person after being terminated, laid off, or otherwise no longer working with the H1B-sponsoring employer. The BCIS may, in its discretion, allow about a 2-week lag, but has the right to deny the COS from H1B to H-4, even based on a few days' gap.
Chat User : Can H-4 dependents get back into status by going out of the country or do they need to go back to the home country and get a new visa?
Attorney Murthy : As long as the H-4 dependent was not unlawfully present for over 180 days, mere departure and reentry from another country (other than Canada or Mexico, unless the trip is longer than 30 days) may be sufficient to enable the person to get back into status upon obtaining a new I-94 card on entry. However, if the person was unlawfully present for even a day, the person is required to obtain a new visa stamp in the passport since any earlier visa stamp is deemed void and the person is required to apply for a new visa stamp in the home country only.
Chat User : What are the options if someone's H1B EOS is denied? Thanks.
Attorney Murthy : Generally, the person is required to travel abroad and reenter in a manner to obtain a new I-94 card. This assumes that the person did not stay beyond the date noted on the I-94 card. If a person overstays the date noted on the I-94 card, then the person is required by law to apply for a new visa stamp at the consulate abroad in the home country and may not apply for a visa in any other country in the world under law.
Chat User : Is it possible to go back to H1B while working on EAD? H1B (only used 3 yrs) expired on March 2003. Just want to know whether this option is still open or not.
Attorney Murthy : The BCIS takes the position that a person cannot file an extension of the H1B status after having been on EAD and after the H1B has expired. However, it should be possible to file the H1B with consular notification and then travel abroad, apply for a new H1B visa stamp at the consulate, and reenter on H1B status with the new I-94 card. There is a risk, though, that the BCIS may consider the person to have violated status based on submitting the old I-94 card upon departing the U.S., since the data entry clerk may not focus on the issuance of the AP, etc. Accordingly, the burden will lie with the H1B beneficiary to retain proof of having filed the I-485 with the AP and EAD to demonstrate having maintained lawful status throughout in the U.S.
Chat User : Hi. Is it legal for me to work while my EAD is expired (I applied for an EAD renewal a month before its expiry)? Is it legal to do an H-1 transfer at this state?
Attorney Murthy : The law states that if the EAD has expired, the person is not legally allowed to work until the new EAD is issued by the BCIS. If the H1B has not yet expired, then one may file an extension of the H1B petition and keep working while the extension of status is pending with the BCIS.
Chat User : Can a person working on EAD go back to H1B? Previous H1B status was not maintained, but H1B is not expired.
Attorney Murthy : Yes, that is possible. That may require the person to travel abroad and reenter using the prior H1B approval notice and the visa stamped in the PP, to enter on H1B status. The BCIS will not approve an extension or change of status from within the U.S., based on their latest interpretation of the law.
