Advice needed - EB1 to buy time

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Hoping4Somethin

Registered Users (C)
I am a stressed out postdoc on H1B. Due to funding cuts, my position is going to be eliminated by mid Jan 2008. I have a job offer from a company and they have agreed to let me start from Jan 2008. Now my problem is that there are no H1 visas available for next year. The HR person at this copmany thinks that it is not a problem because they can transfer my current H1. However my current H1 is quota exempt and from what I understand, quota exempt H1 can not transferred to an employer subjected to H1 quota. Knowing this, I am trying to figure out my options so that I am not without a job when my current position ends.

One option that I am considering is to start working on an EB1-EA petition. Hopefully when immigrant visas become available in Oct, EB1 will be current and I can file my I-140 along with I-485 and EAD at VSC. It seems that VSC is taking more than a year to take a decision on such applications. I am hoping that this will allow me to start working with new employer based on EAD and when new H1s become available, I can ask my employer to get an H1 for me. Btw, I am convinced that my case does not stand a chance under EB1 (EB2-NIW maybe, but that does not help me at all as everyone is saying that EB2 is going to be retrogressed for a long time to come).

I would like get some opinions on whether this is doable. I have this feeling that there is some catch which I am missing completely.

Thanks for any suggestions.
 
Hi Hoping4something!

You say that you will be applying for EB1 in October and VSC takes one year to make a decision. I dont know how you will be able to start industry job in January 2008 as I dont think that you can get EAD before a decision has been made on your I-140 (I might be wrong, though, may be some experts here can help). Even if I-140 is approved within 2-3 weeks (if you go for PP), then EAD will take another 2-3 months, going by TSC standards. So, you will be pushing by applying in October.

You are right that you can't transfer academia H-1B to industry H-1B as academia H-1B is cap-exempt. But, if you can work for both industry and academia at the same time (lets say 90% industry and 10% academia), then industry lawyers, provided they are smart, should be able to work out a way.

The best option, I suggest you follow, is go for O-1 visa. I don't know much about it (though I recently got approved for it). But, I have heard that it is Outstanding researcher, is dual-intent, and has PP (premium processing). My case got approved in 8 days (at VSC). Looks like this is the best choice for you at this time.

Hope it helps.

One question, why do you want to wait till January to join, if you can get O-1 visa now?
 
ludhianvi said:
Hi Hoping4something!

You say that you will be applying for EB1 in October and VSC takes one year to make a decision. I dont know how you will be able to start industry job in January 2008 as I dont think that you can get EAD before a decision has been made on your I-140 (I might be wrong, though, may be some experts here can help). Even if I-140 is approved within 2-3 weeks (if you go for PP), then EAD will take another 2-3 months, going by TSC standards. So, you will be pushing by applying in October.

You are right that you can't transfer academia H-1B to industry H-1B as academia H-1B is cap-exempt. But, if you can work for both industry and academia at the same time (lets say 90% industry and 10% academia), then industry lawyers, provided they are smart, should be able to work out a way.

The best option, I suggest you follow, is go for O-1 visa. I don't know much about it (though I recently got approved for it). But, I have heard that it is Outstanding researcher, is dual-intent, and has PP (premium processing). My case got approved in 8 days (at VSC). Looks like this is the best choice for you at this time.

Hope it helps.

One question, why do you want to wait till January to join, if you can get O-1 visa now?
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Thanks a lot for suggestions. I was thinking that I would file my petition at Vermont but it seems like it has to go to TSC (as pointed by skvadivel). TSC is processing petitions from Jan 2007, so it takes about 6 months for a decision (not one year as I was hoping). My plan was to file I-140, I-485 and EAD concurrently, get my EAD in ~2 months and start working using that, have my employer apply for H1B in April 2008 (when USCIS starts taking in new applications) and go on H1B in Oct 2008 (when new H1B becomes effective), meanwhile my EB1 application would still be pending.

I read about O-1 and it has very demanding requirements. I don't think I would qualify for it. I need to explore that 90%/10% option that you suggested. But I was under the impression that if I wanted to work for both academia and industry simultaneously, I would need two separate H1s.
 
Hoping4Somethin said:
Thanks a lot for suggestions. I was thinking that I would file my petition at Vermont but it seems like it has to go to TSC (as pointed by skvadivel). TSC is processing petitions from Jan 2007, so it takes about 6 months for a decision (not one year as I was hoping). My plan was to file I-140, I-485 and EAD concurrently, get my EAD in ~2 months and start working using that, have my employer apply for H1B in April 2008 (when USCIS starts taking in new applications) and go on H1B in Oct 2008 (when new H1B becomes effective), meanwhile my EB1 application would still be pending.

I read about O-1 and it has very demanding requirements. I don't think I would qualify for it. I need to explore that 90%/10% option that you suggested. But I was under the impression that if I wanted to work for both academia and industry simultaneously, I would need two separate H1s.
Click to expand...


It looks you are bit restless and you need to understand the situtation. You are afraid that O-1 is very difficult but you would like to apply for EB1-EA. Both O-1 and EB1-EA have same criteria, the o-1 being easy compared to EB-1-EA.

These are two options avaibale for u

1. Apply for EB-EA I-140 at first now and I-485, EAD and AP in October provided if visas are available for eb1 that time. In that meantime you can go for PP for your I-140 (again if USCIS resumes PP for I-140, it is temporarily suspended). So you know results soon. But no one knows what will happen in October when new fiscal year begins.

2. Otherwise apply for O-1 now and apply for I-140 in January. but make sure you get two types of letters from your references, one for EB1-EA and one for O-1.

good luck
 
Hoping4Somethin,

I would suggest you to first speak to an immigration lawyer maybe he can come up with something creative.

Second, your objective is to buy time. Therefore, any EB2 type petition is not going to be helpful in your case if you are from a retrogressed country. Because simply yo cannot file I-485 and take advantage of the benefits of filing I-485 like EAD and advance parole.

Hence, you may file EB1-EA, even if you think it is going to be a weak case. No need to do PP because your objective is really to buy time. You may want to send your EB1-EA petition just two months before your start your company work and before your academic H1 status expires. Now upon submitting the I140 petition, a prima facie review takes place to determine if your case is sound and approvable. If this is the case, your I-140 will be queued for processing, else it will be immediately rejected. So make sure that your petition is as sound as possible. Again, it usually take 6 months of regular processing for EB1s, so you want to make sure that in that time you can file for the H1B visa around April 2008... Let's say that your I-140 in June was rejected. then what happens is that you are still in status and not out of status because you have a pending H1B application. However, the bad thing is that you cannot be anymore on the payroll of the company until after October 2008 when the H1B visa is actually approved.

So, yes, if you plan to buy time, think about when to file, forget about PP if you think the case is weak, and make sure your case is appealing and can pass the so-called prima facie review. Finally, O-1 visas are definitely, as other members of this forum suggested, is a serious option to consider. Since you have a Ph.D and have went through some post doctoral work, this is very well to your advantage.

But, the best thing is also to consult with immigration lawyers to see if there is something to be done too.

Good luck
 
Hi hoping4something,
Understand onething clearly. Once U file I-485 and start using your EAD, U will lose your non-immigrant status and U can not file for H1B again.


ssssk
 
ssssk said:
Hi hoping4something,
Understand onething clearly. Once U file I-485 and start using your EAD, U will lose your non-immigrant status and U can not file for H1B again.


ssssk
Click to expand...
That is correct. After you start using EAD, you cannot go back to H1B.

Another option you can consider is to do another short-term academic postdoc on H1B (until Oct 08) and start working when you get your H1B through your company. If you have done your PhD in the US, you have a better chance to get it.

You can also start preparing and applying for your EB1 or NIW petition at the same time.
 
ssssk and eb1a-query...

You can always maintain an H1B and at the same time file for a green card. H1B is a DUAL INTENT visa. I never heard that you loose your H1B status once you file your I-485 or vice versa by being unable to file for H1b once you filed I-485... In fact, I know several people who have filed their I-485 and at the same time maintain an H1B status...

"Categories that enjoy dual intent : H1B, H1C, H-4, L-1, L-2, and V categories are exempted from the immigrant intent provisions of §214(b). These categories enjoy the "dual intent" benefits available under the Immigration Act of 1990. "

http://www.murthy.com/news/n_doscab.html

Now regarding EAD, it is true that if you use an EAD with a company, then you did forfeit your H1B that was filed by that company. But, you never loose H1B just because you filed for I-485. If you decide to not use the EAD, then you have to re-file for an H1B again. Therefore, once you file for an H1B and it gets approved, you have to start using it on your I-9 form with the company, and not use the EAD with that company. If you return to using the EAD card with the coppmany, then the H1B is voided. Please correct me if I am wrong.
 
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I think his problem is: after he used EAD, can he still apply and get a H1B? H1B is dual intention but I don't think you can freely switch between 485-based EAD and H1B.
 
JerIst said:
Hence, you may file EB1-EA, even if you think it is going to be a weak case. No need to do PP because your objective is really to buy time. You may want to send your EB1-EA petition just two months before your start your company work and before your academic H1 status expires. Now upon submitting the I140 petition, a prima facie review takes place to determine if your case is sound and approvable. If this is the case, your I-140 will be queued for processing, else it will be immediately rejected. So make sure that your petition is as sound as possible. Again, it usually take 6 months of regular processing for EB1s, so you want to make sure that in that time you can file for the H1B visa around April 2008... Let's say that your I-140 in June was rejected. then what happens is that you are still in status and not out of status because you have a pending H1B application. However, the bad thing is that you cannot be anymore on the payroll of the company until after October 2008 when the H1B visa is actually approved.
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Thanks very much for your response. Based on my situation, I think I have to go with EB1-EA and get my case prepared so that it passes prima facie review. It will buy me at least 6 months. Then after 6 months, hopefully I'll get an RFE which will give me some more time and carry me to Oct 08.

I was doing some reading and it seems to me that I could try for EB1-OR also (depending upon if my industry employer is willing to support me). EB1-OR seems a bit easier to get compared to EB1-EA. Based on the criteria on the following website
http://www.twmlaw.com/new/eb1_2.html
I think I can qualify for no ii ( has at least three years of experience in teaching or research in the academic area) and possibly for no iii (seeks to enter the United States for a comparable position to conduct research in the area with a department, division, or institute of a private employer). I am not sure what their definition of a tenure-track comparable position in industry is.

Regarding no i (is recognized internationally as outstanding in a specific academic area), I need to meet two criteria out of six listed. Out of the six listed, I am looking at E and F,

(E) Evidence of the person’s original scientific or scholarly research contributions to the academic field; or



(F) Evidence of the individual’s authorship of scholarly books or articles (in scholarly journals with international circulation) in the academic field;

It seems to me that both E and F can be satisfied with having papers in international journals. If that is the case, then I can try to satisfy these two as I have nine papers [4 from postdoc-(3 first author); 4 from PhD (3 first and 1 second author); and 1 from MS-second author]. One thing that I am worried about in this is that my post-doc papers are not in very high profile journals.
 
JerIst said:
ssssk and eb1a-query...

You can always maintain an H1B and at the same time file for a green card. H1B is a DUAL INTENT visa. I never heard that you loose your H1B status once you file your I-485 or vice versa by being unable to file for H1b once you filed I-485... In fact, I know several people who have filed their I-485 and at the same time maintain an H1B status...

"Categories that enjoy dual intent : H1B, H1C, H-4, L-1, L-2, and V categories are exempted from the immigrant intent provisions of §214(b). These categories enjoy the "dual intent" benefits available under the Immigration Act of 1990. "

http://www.murthy.com/news/n_doscab.html

Now regarding EAD, it is true that if you use an EAD with a company, then you did forfeit your H1B that was filed by that company. But, you never loose H1B just because you filed for I-485. If you decide to not use the EAD, then you have to re-file for an H1B again. Therefore, once you file for an H1B and it gets approved, you have to start using it on your I-9 form with the company, and not use the EAD with that company. If you return to using the EAD card with the coppmany, then the H1B is voided. Please correct me if I am wrong.
Click to expand...

I never said, you lose your H1B when you file for I-485 (in fact that's what my situation is), I was talking about using EAD. You are right H1B is a dual intent visa and you can maintain your H1B while you are applying for GC, as long as YOU DO NOT USE EAD. If you use EAD, you lose your H1B status. However, you can travel with AP, without losing H1B.
 
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arthurking75 said:
I think his problem is: after he used EAD, can he still apply and get a H1B? H1B is dual intention but I don't think you can freely switch between 485-based EAD and H1B.
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I am not planning to switch from EAD to H1B and then back to EAD. I was hoping that I could start working with a company on EAD and have that company file H1B for me. Once H1B gets approved, I could then change my status to H1B. I do not mind if going to H1B from EAD would result in canceling of my I-140/I-485, if that is the case.

However if law says that someone who starts working on EAD can never get H1B again, then it is a big problem for me.
 
[I was hoping that I could start working with a company on EAD and have that company file H1B for me. Once H1B gets approved, I could then change my status to H1B. I do not mind if going to H1B from EAD would result in canceling of my I-140/I-485, if that is the case]

No. You canNOT change your status to H1B again if you start working on EAD.
 
Please correct me if I am wrong. What I understand from this thread is one can go to 1. H1b to i140 (pending/approved i485 pending)
2. Use EAD to work at his time may not have H1b
3. Go back to H1b if choose too or before i140 rejected.
 
When did USCIS change the rule? I was under impression that once you have H1B (even through university) you can apply for H1-ex. to work in industry. Once you got H1 (even through Univ) you are fine to extend it the cap limit and all that does not apply for you to extend u r H1 if u wanna work in industry. If USCIS change it in last year or so then I dont know.
Any one know any publication/notice of USCIS on it?
 
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This is NOT a new rule. Academic H1B is exempt and has no cap. However, industrial H1B is under the quota (65,000 + 20,000 for US grads). You cannot convert academic H1B to a non-exempt one. Although the years you have spent on an academic H1B counts towards total 6 years on H1B. Again this is nothing new. This is what I had to go through and others that I know when I started working in industry in 2004.
 
raonj1 said:
Please correct me if I am wrong. What I understand from this thread is one can go to 1. H1b to i140 (pending/approved i485 pending)
2. Use EAD to work at his time may not have H1b
3. Go back to H1b if choose too or before i140 rejected.
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Thats what I was planning to do but people here are saying that once you do number 2, you can not do number 3.
 
Hoping4Somethin said:
Thats what I was planning to do but people here are saying that once you do number 2, you can not do number 3.
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Why do you think that you cannot continue working on EAD? Prepare your case well, and you will get your I-140 approved. You can try both EB1-EA and EB1-OR if your company sponsors, even NIW if your research falls under NI. You might be just fine. You just have to apply for EAD every year until your I-485 is approved.
Only one problem I see is if in the Oct visa bulletin, EB1 or EB2 is not current. But if you are not from China or India, the chances would be less and you would be fine.
 
Also note that you can have quota-exempt H1B from the company you are planning to work for as long as you physically work at where you are working now. In other words, if you can somehow have your current research lab accomodate you physically there and your company has no problem with you physically working there for the company, you can still have quoate-exempt H1B. This of course requires some sort of arrangement with your current and future employer. More at http://www.murthy.com/news/n_capexe.html

Good luck,
 
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