485--EAD---H1B :Swapping possible?

S

sammyboy

Registered Users (C)
Iam working with company ABC and have 8th year extension Visa which Iam using for work . My status is I485 pending filed from same company and also posess EAD from same company .

(the reason for H1B is that it is an insurance to work till validity of H1 in case 485 gets denied and EAD is insurance to switch jobs )

Anyways what I want to know is that if I quit company ABC and joined MMC then
a) Can I file an H1 extension from that company ?
b)Can I switch using my EAD first and then file an H1 extension ?
 
sammyboy said:
Iam working with company ABC and have 8th year extension Visa which Iam using for work . My status is I485 pending filed from same company and also posess EAD from same company .

(the reason for H1B is that it is an insurance to work till validity of H1 in case 485 gets denied and EAD is insurance to switch jobs )

Anyways what I want to know is that if I quit company ABC and joined MMC then
a) Can I file an H1 extension from that company ?
b)Can I switch using my EAD first and then file an H1 extension ?
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Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?

Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be: Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
Click to expand...

See the above quote from the new AC-21 memo. When you use the EAD you are on "period of stay authorized by the Attorney General"?

You may be able to come back on H1 after using EAD. Talk to some good attorney
 
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tammy2 said:
Did you see the answer in the New Ac-21 Memo? I guess now you can that.
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I don't think so. Read carefully what "period of stay authorized by the Attorney General" means. Answer in AC-21 memo already gave a pretty good example. Just elaborating the same example, person's extension application should be pending to be eligible for "period of stay authorized by the Attorney General" (Attorney General is authorizing the stay because USCIS could not approved H1 extension "on time"). Basically the original H1 is expired, company A filed for H1 extension but USCIS did not approve yet. Now the question is that can company B file for H1 transfer? The transfer is in question because original H1 expired, next extension is not approved yet. In another word, there is nothing to transfer from. But this memo say YES, in that circumstance it's transferrable.

But in "sammyboy" case, there is no H1 extension pending in USCIS and he is abandoning his H1 status voluntarily and moving to EAD status (or AOS status). Hence there is no "period of stay authorized by the Attorney General" in his case.
 
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Kind of similar situation

Hi all:

I am in my 8th year extension which will expire in another 6 months. I just filed my I-140, I-485 after receiving my LC in Mar 05. I got my EAD and AP.

My question is:

After 6 months have apssed since filing my I-140, I-485 (which will be in Oct 05), I should be able to port to another employer. Now, I dont know if I can extend my H1 B for the new employer (instead of using EAD) because I dont meet the two required conditions:
a) More than 365 days have passed since my labor was applied but now my labor is approved and not pending!!!
b) By Oct 05, only 180 days (not 365 days) will have passed since applying for I-140

If I wait till more than 365 days have passed since I-140, I will be in April 06 but then my H1 will not be valid since my current H1 expires in Dec 05. SO am I stuck with having to use EAD after Dec 05 and consequently forego the ability to extend my H1b?

Also,
c) while one is waiting on I-485 and more than 6 months have passed since application, can one be in the country without a job. Does the EAD card keep you "In Status" while you are jobless?

I would appreciate your input and thanks for contributing to this forum.

Regards,

Santosh_30
 
santosh_30 said:
I dont know if I can extend my H1 B for the new employer (instead of using EAD)
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Yes, you can. In your case, the condition for 6 year term limit is removed already. This term limit condition is beneficiary-specific (not employer specific). So you can extend upto 10 years regardless of your change of employer.

santosh_30 said:
c) while one is waiting on I-485 and more than 6 months have passed since application, can one be in the country without a job. Does the EAD card keep you "In Status" while you are jobless?
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EAD card does not keep you on status, it's merely a work permit. Your I-485 keeps you on "AOS status". Legally, there is nothing wrong to be jobless in AOS status, but, if required (in RFE or interview), you need to show prospective job offer to USCIS. Being jobless can land your I-485 in more scrutiny.
 
So bottom line is transfer to another company on H1 andyou can keep your EAD as an insurance . The reason for H1 usage is that if my GC gets denied I could still for for those few extra months and get rid of all the baggage before leaving this country .
 
pralay said:
I don't think so. Read carefully what "period of stay authorized by the Attorney General" means. Answer in AC-21 memo already gave a pretty good example. Just elaborating the same example, person's extension application should be pending to be eligible for "period of stay authorized by the Attorney General" (Attorney General is authorizing the stay because USCIS could not approved H1 extension "on time"). Basically the original H1 is expired, company A filed for H1 extension but USCIS did not approve yet. Now the question is that can company B file for H1 transfer? The transfer is in question because original H1 expired, next extension is not approved yet. In another word, there is nothing to transfer from. But this memo say YES, in that circumstance it's transferrable.

But in "sammyboy" case, there is no H1 extension pending in USCIS and he is abandoning his H1 status voluntarily and moving to EAD status (or AOS status). Hence there is no "period of stay authorized by the Attorney General" in his case.
Click to expand...

In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”
Click to expand...

See the above sentence in the memo. Usually "period of stay authorized by the Attorney General.” meaning is staying here on Pending AOS status.


http://www.immigration-law.com/AC-21 Memo 05-12-05.pdf
 
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Section 214 will have nothing to say about I-485 status, because it deals with non-immigrants. Generally, beneficiaries of a pending Adjustment are in a stay "authorized by the Attorney-General" (or now, Secretary of DHS) - that's why you can stay in the US even if your I-94 expires.

Based on that reading, an I-485 beneficiary should be eligible for an 7th year H even if the original H has expired. Wether the alien can avail themselves of portability, and then switch back into H status - I don't see why not. That being said, I'd be interested to see what USCIS says.
 
My understanding of the memo is that you have to be in authorised stay and the memo specifically states at the end of that example you do not have ot be in H-1 status but in authorised stay so I think you can go back to H-1. However this is very tricky one should talk to a good lawyer
 
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