7th year H1b extension pending approval, now changing job using AC21 on EAD

D

dec0226

Registered Users (C)
First brief case history -
1. Filed for 485 and 140 concurrently in Dec 2002 ( also filed for advance parole for me and spouse. And EAD for only spouse )
2. 140 approved in May 2003 ( also APs for both and EAD for spouse )
3. Applied for EAD for self in August 2003 on my own online.
4. EAD for myself approved in Sep. 2003
5. Meanwhile my H1b was expiring in Novmber so my company applied for 7th year extension in October. This application is not yet approved.

Now changing jobs using AC21 and on EAD ( same job description ).

Consulted reputed law firm for case review. Here is what attorney told me -
1. My case fits the AC21 rule as the job description matches even though designation is different and it is more than a year since my 485 filing and of course 140 is approved. ( Though the attorney said it is always a risk to use AC21 but it is not a major concern.)

2. My current employer can revoke 140 but will not affect my 485.

3. Most interesting thing the attorney told me was that if my current company cancels the H1B petition then I will have accrued unauthorized work from the day my H1b expired (Nov, 11) until I join the new company using EAD (Mid Jan). Because I was on H1b and did not use EAD even though I had it all this time. And again as this period is less than 180 days I should not have any problem in 485.
This third point is my major worry.

Any thoughts about the attorneys analysis of my case?

Thanks
 
Can you post the exact date of 7th year extension application filed. Did you recieve a reciept???
Is 7th year extension considered as extension or does it come under the cap???
 
Originally posted by dec0226
My 7th year extension was filed on Oct 9th. And I don't think it is subject to cap.
Click to expand...

H1-b cap does not apply to renewals.

The attorney's analysis is on the money. Although the period from the H1-b expiry to the time you change jobs using your EAD would count as unauthorized work on the face of it, H1-b regulations permit continuance of employment as long as a renewal application is filed with the INS before the previous one expires. Accordingly, you are on solid grounds logically. Of-course, INS can act illogically and should this happen in your case, you would have to be amenable to judicial recourse to be able to prevail.
 
First brief case history -
1. Filed for 485 and 140 concurrently in Dec 2002 ( also filed for advance parole for me and spouse. And EAD for only spouse )
2. 140 approved in May 2003 ( also APs for both and EAD for spouse )
3. Applied for EAD for self in August 2003 on my own online.
4. EAD for myself approved in Sep. 2003
5. Meanwhile my H1b was expiring in Novmber so my company applied for 7th year extension in October. This application is not yet approved.

Now changing jobs using AC21 and on EAD ( same job description ).

Consulted reputed law firm for case review. Here is what attorney told me -
1. My case fits the AC21 rule as the job description matches even though designation is different and it is more than a year since my 485 filing and of course 140 is approved. ( Though the attorney said it is always a risk to use AC21 but it is not a major concern.)
TRUE
2. My current employer can revoke 140 but will not affect my 485.
TRUE
3. Most interesting thing the attorney told me was that if my current company cancels the H1B petition then I will have accrued unauthorized work from the day my H1b expired (Nov, 11) until I join the new company using EAD (Mid Jan). Because I was on H1b and did not use EAD even though I had it all this time. And again as this period is less than 180 days I should not have any problem in 485.
This third point is my major worry.
NOT TRUE.
you are in legal status as long as your i485 is pending. it does not matter whether you applied for h1 or using ead or not. attorney general as authorized your stay in this country until your i485 is adjudicated. only difference is whether you are eligible to work - you can use either h1 or ead.
even in case your employer revokes the h1 then the revocation is effective only when the uscis responds to that petition and the date will be the filing date of revocation and not the filing date of h1 extension.
to make this more clear for you - consider you work for company-a and you filed your h1 extension just one day before the expiration of your first 3 year term/h1 approval and you have been working based on the extension filed. after 2 months you can file another h1 petition using another employer and show your legal status from the reciept notice of h1 filed by company-a.
Any thoughts about the attorneys analysis of my case?
time to change your attorney
 
Sankrityayan, saigc, peace_of_mond
Thanks for your replies.

I think I understand what you are telling me. But in case of subsequest H1b filings, at the end one H1b gets approved and that may be basis for validation for all previous H1b filings.
In this case H1b petition will be abandoned and there won't be any followup.

Can I ask my current employer to revoke the H1b only after its approval which may be min. 2 months from now? ( I don't know if he will do that but worth a try if it helps).
 
Originally posted by dec0226
Sankrityayan, saigc, peace_of_mond
Thanks for your replies.

I think I understand what you are telling me. But in case of subsequest H1b filings, at the end one H1b gets approved and that may be basis for validation for all previous H1b filings.
In this case H1b petition will be abandoned and there won't be any followup.

Can I ask my current employer to revoke the H1b only after its approval which may be min. 2 months from now? ( I don't know if he will do that but worth a try if it helps).
Click to expand...

Ideally, your current employer should do nothing, now or later. That way you would have an approved H1 and you can switch jobs using your EAD.
 
If the employer is revoking now even he has the problem. He has employed you illegally. He should get the approval and send the letter of revocation stating you are no working him. But do get the copy of I-94 and approval notice from him.
 
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