After 6 Yrs of H1B, which is better EAD or H1B extension?

compiler said:
Do you know why the lawmaker permits the post 6 years H-1B? Do you understand the post 6 years H-1B is for the completion of one’s I-485?
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If your contention was true, then 7th year Hs would not be available to people who are going through Consular Processing. The fact that CP filers can get 7th year Hs clearly proves that you have no idea what you are talking about.
 
compiler said:
I still wouldn’t see the law permits the post 6 years H-1B continuous if one’s I-485 has been denied.
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not true. If that's the case how would one file another AOS if first one is denied?
compiler said:
Do you understand the post 6 years H-1B is for the completion of one’s I-485? Once it is denied (the CIS usually orders you leaving immediately), your post 6 years H ends consequently.
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Again you are wrong. h1 extensions are granted based on 365 days old pening/approved labor application, nothing to do with denial of I-485. If your I-485 is denied and you were on 8th year h1 extension, you can continue getting h1 extensions based on the same pending labor OR ANY 365 days old PENDING LABOR (any company) and mange to file another I-485. Post 6 years h1 are granted on the basis of 365 days old labors.

Very rencently I have seen a case where person was on 7th year H1 from company A, switched to company B on A's pending labor. B had filed his I-485, which denied and he had to switch to company C using A's pending labor and he got 8th year extension with A's pending labor with no issues.
 
GreenCardVirus said:
Beyond 6 years, you get only extension if 140 is approved and not revoked/withdrawn. Doesnt matter if you are on H1 currently.

I was in a similar position. I moved using AC21 and EAD. After my former employer revoked my 140, I wanted to try for H1 transfer because not many days passed after I changed jobs and when 140 was revoked. There was nothing I could do because 140 was revoked, there is no basis for extension.
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I am quoting some Q&As from the latest Memo on AC21 of May 12, 2005.

Question
When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or B. an I-140 is denied or revoked at any time
except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.

Does this mean even if the approved I-140 was withdrawn after 180 days of pending I-485 then USCIS considers the I-140 valid for Portability Purposes. If the I-140 is considered valid for portability purposes then why should the person not be given H1-7th year extension .

The next question clarifies the same:

Q & A ON PROCESSING OF H-1B PETITIONS UNDER THE “ONE-TIME PROTECTION UNDER PER COUNTRY CEILING” PROVISION OF §104(C) ALLOWING EXTENSION PAST THE H-1B 6-YEAR LIMIT Question 1.

Question : Must an alien be the beneficiary of an approved I-140 petition in order to qualify for extension of H-1B status beyond the 6-year limit based on §104(c) of AC21?

Answer: Yes. Consistent with prior USCIS guidance on this subject, an approved I-140 petition is required in order for an alien to qualify for an extension of H-1B status beyond the 6-year limit under § 104(c).

This also clarifies the H1-B will be garnted for a period of 3 years if all other H-1B statutory and regulatory requirements are met.

Question : If an alien qualifies for an extension past the H-1B 6-year limit under §104(c), may an extension be granted for a period of up to three years?

Answer: Yes, provided all other H-1B statutory and regulatory requirements are met (e.g., the petition must request three years, and include a Labor Condition Application covering such period).

The Memo Doesn't specify anything that says the the Approved-140 will not be considered for 7th year extension if it is withdrawn after >180 days of pending I-485.

My lawyer told me his reply after confirming that if my I-140 was approved when I ported to a new employer and he also told me that I should get 3 year extension.

GreenCardvirus, I am still not sure why you were not granted the 7th year extension as per the New Memo Released on May 12, 2005.

Can anyone on this forum please please throw some light on this subject.

Thanks a lot!!
 
compiler said:
If I had time to read the law, I still wouldn’t see the law permits the post 6 years H-1B continuous if one’s I-485 has been denied. Neither is it the lawmaker’s intention. Do you know why the lawmaker permits the post 6 years H-1B? Do you understand the post 6 years H-1B is for the completion of one’s I-485? Once it is denied (the CIS usually orders you leaving immediately), your post 6 years H ends consequently. You thought you can play with the immigration system as you like, that keeps you stay after your I-485 has been denied. You had better suck out the snot before making your twang.
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Compiler,

You and me are 100% right. I confirmed with 3 lawyers before I giveup my H1B after 6 years. It is waste to discuss about this with peoples do not want to understand. The only peoples has to worry about this (maintaing H1B till 485 approval), who are working for fradulant employers sponsering massive green gards (makes money from just sponsering GC), without having enough potential for ability to pay.
 
unitednations said:
This is not meant to scare people but rather enlighten them.

Over the last year; nebraska and california service center have routinely added up pending I-140's and approved I-140's for purposes of ability to pay. In some cases those service centers have revoked approved I-140's due to USCIS error in approving them.

Today; I had three companies contact me that had RFE's from vermont service center; stating you have filed 17 I-140's and many that are approved. Prove you can pay $1,600,000. Your answer will affect the approved I-140's and USCIS will consider revoking them.

Another example of it isn't over until it's over (famous Yogi Berra saying)
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UN, what if some of those 140's already produced Green Cards?
 
can_card said:
Compiler,

You and me are 100% right. I confirmed with 3 lawyers before I giveup my H1B after 6 years. It is waste to discuss about this with peoples do not want to understand. The only peoples has to worry about this (maintaing H1B till 485 approval), who are working for fradulant employers sponsering massive green gards (makes money from just sponsering GC), without having enough potential for ability to pay.
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Even if you are working for a big company and then later use AC21 to change to much bigger company, there is some risk involved with I-485. It is advisable to always have H1 to fall back on to.

Coming to your original issue on where a H1 beyond 7th year is valid upon 485 denial, no matter what you or your lawyers say, the ground reality is that the H1 will still remain valid.

Simple reason being that H1 (unlike EAD) by itself defines your legal status and gives you ability to work. Once you have a H1 valid till a future date, it is good till that date.

EAD and AP are dependent on valid I-485. I-485 is dependent on valid H1 (only at the time of filing 485). H1 (only 7th + year and at the time of filing/approval) depends on Valid Labor or Valid I-140. (valid means either pending or approved)

So, if a 485 is denied, only its dependents (EAD/AP/dependent 485) become invalid.

After you get 7th year H1 extension, if labor or 140 is denied, current regulations allow one to continue working on H1.

To get a 7th year H1, current regulations don't insist that you should be working for the same comany where your applied labor/140 is pending.
This seems illogical but it is what it is.

Even if regulations change in future, I dont think 485 denial will ever affect H1 status.
 
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Question 3. Are there cases where an alien, who has been granted an H-1B extension beyond the 6th year, will nonetheless only be allowed to remain for the 6-year maximum period of stay?

Answer: Yes. As addressed in the April 24, 2003 guidance memorandum, USCIS is required to grant the extension of stay request made under section 106(a) of AC21, in one-year increments, until such time as a final decision has been made to:

A. Deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification;
B. Deny the EB immigrant petition, or

C. Grant or deny the alien’s application for an immigrant visa or for adjustment of status.

If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

Section II of Yates Memo of May 12, 2005

Again, do not be misled by the little ones.
 
Please advice...

I read the entire thread (not sure I am able to digest it completely), but my scenario is as follows,
My I-140 is approved more than an year back and I have EAD. My priority date is September 2001 (EB3 - labor transfer). My H1B I-94 expired two weeks back. I have been asking my employer to file for 3 year H1, but they said no as I have EAD.
I'd like to know,
1. Few of my friends said it's better to be on H1 and scolded me for slipping the I-94 expiration pass by. Is it too late to file for H1-B extension?
2. What is the consensus, is it better to be on EAD or H1B?

Also, Is it true that one can apply for 2nd Labor and I-140 with EB2 and use the old Priority date with this new 485?
Let me know if I am not clear and thanks in advance for the reply.
 
raetta said:
1. Few of my friends said it's better to be on H1 and scolded me for slipping the I-94 expiration pass by. Is it too late to file for H1-B extension?
2. What is the consensus, is it better to be on EAD or H1B?
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It depends on what you mean by "better". People talk about H status as being a fallback if the I-485 is denied, but the truth is that for people without a criminal record or inadmissibility issues, 99.99% of all I-485s get approved. Really, the two practical reasons why H status might be better is that if you have a dependent spouse without a filed I-485 and your priority date is no longer current, you need to maintain valid non-immigrant status so that the spouse can continue to do so. Additionally, a 3 year H might be cheaper than renewing an EAD or AP if you travel extensively.

However, it's really rather irrelevant since your employer doesn't want to file an H, since it's expensive and doesn't provide anything that a much cheaper EAD cannot provide. From the employer's perspective the H is certainly not better than the EAD.

Also, Is it true that one can apply for 2nd Labor and I-140 with EB2 and use the old Priority date with this new 485?
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Sure, but it will need to be for a substantially different job than the first LC.
 
My 140 is approved and 485 is pending for more than 180 days. Myself and my spouse both got EAD and AP

My H1B expires in the 3rd week of May 2007 and hence my I-94.

1) Should I extend my H1B (I am on 8th year of H1B now ) ?
2) If I extend H1B, do I need to file for H4 for my spouse also ?
3) Since my I-94 is expiring in May, do I need to reenter US based on my EAD/AP , if I am not going to extend my H1B ? I mean, will I be in legal status based on valid EAD , even if I-94 is expired ?

I would appreciate your help.
 
Any one to take my following questions .Appreciate your reply.

RJ_NJ2002 said:
My 140 is approved and 485 is pending for more than 180 days. Myself and my spouse both got EAD and AP

My H1B expires in the 3rd week of May 2007 and hence my I-94.

1) Should I extend my H1B (I am on 8th year of H1B now ) ?
2) If I extend H1B, do I need to file for H4 for my spouse also ?
3) Since my I-94 is expiring in May, do I need to reenter US based on my EAD/AP , if I am not going to extend my H1B ? I mean, will I be in legal status based on valid EAD , even if I-94 is expired ?

I would appreciate your help.
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H1-B or EAD

H1-B trail: I have been working on H1-b since 1999, my current H1-b is expiring in June 2007. My LC was approved in Sep 2006 & I-140 is filed in Feb 2007 but yet have not received any receipt number.

GC/EAD trail: I got married in January 2007 at that time my husband's PD was current, so he filed for my EAD & 485. Both my EAD & 485 was received in February 2007 by TSC. My husand's GC is approved few days back and today I received my EAD approval.

We are planning to visit India sometime in June 2007, my questions are...

- My LC was approved in Sep 06 but have not receieved I-140 receipt, am I still eligible to get H1-B extention?
- If I get H1-B extention, can i countinue working using H1-B?
- Can i apply for AP even I am not planning to use EAD?
- After applying for AP, my H1-B status is still valid?
- I am confused in terms of wether to use H1-b or EAD, any suggestions?

Please guide....
 
Need official USCIS link for April 24, 2003 AC21 memo

Guys,

I used a substitute labor and I-140 has been approved. My I-485 was filed in Nov 2006 and still pending. The priority date of the labor is current so I-485 will be processed any time.

My H1-B is expiring on June 30, 2007. My company's attorney is telling me that since the priority date on sub labor is current and we have already filed I-485, we cannot apply for H1-B extension and I will have to apply for EAD.

I disagree with that however I do not have any official link from USCIS website which confirms that I can get at least 1 year extension while my "adjustment of status" application is pending.

I saw recent post from "compiler" which is the answer I was looking for, however I need the link for April 24, 2003 memo on AC21 which says that I can get 7th year extension of my H1-B while my I-485 application is pending.

So "compiler" or sombody else if you have official link from USCIS website or pdf document from USCIS for April 24, 2003 AC21 memo, please provide it to me

Thanks a lot in advance
 
sejalmitesh said:
Guys,

My H1-B is expiring on June 30, 2007. My company's attorney is telling me that since the priority date on sub labor is current and we have already filed I-485, we cannot apply for H1-B extension and I will have to apply for EAD.
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Your company's attorney and every one know that anyone with pending I-485can extend H on yearly bases. The point is that; some places, including my university, have internal regulations regarding this issue and do not want to extend H on yearly bases based on many factors. The most important factor determining this internal regulation is the paper work and cost of H extension on yearly basis while the candidate can apply for EAD for the same time period (one year) on his/her expenses with almost no paper work. All the people in my university work with EADs after the 6 year. I understand that you want to be on H in case your I-485 get denied so, you will have sometime time to act accordingly. The employer usually may have different opinion. I think if you quote web site or something to the attorney will not help much.
 
EAD or H1B

Thanks all for your kind answers!
I've read all of the above threads and have noticed that H-1B is safer but still need some clarifications on the following:

I'm on 7 yrs H-1B with validation of Sep.09 (have been working for 6.5 years for company A) and having I-485 pending for more than 9 months now and want to change my job to the company B and would like to know what would be the impact of:

1- Transferring my H-1B Visa to company B
2- Using EAD

1: In case of transferring my H-1B what is going to happen to my GC? Company B or A which one would be my sponsor for GC?
Do I need to send AC-21 letter to USCIS too (If I transfer my H-1B)?
Can I renew my EAD and AP if I transfer my H-1B?

If company A will still remain my sponsor, do I need to get any document from them in case of RFE?

2: In case of using EAD, company B would be my sponsor?

I would really appreciate your help.
 
roro13 said:
Thanks all for your kind answers!
I've read all of the above threads and have noticed that H-1B is safer but still need some clarifications on the following:

I'm on 7 yrs H-1B with validation of Sep.09 (have been working for 6.5 years for company A) and having I-485 pending for more than 9 months now and want to change my job to the company B and would like to know what would be the impact of:

1- Transferring my H-1B Visa to company B
2- Using EAD

1: In case of transferring my H-1B what is going to happen to my GC? Company B or A which one would be my sponsor for GC?
Do I need to send AC-21 letter to USCIS too (If I transfer my H-1B)?
Can I renew my EAD and AP if I transfer my H-1B?

You do need to send AC-21 letter to the USCIS in any case; if you use EAD or company B will sponsor your H and extend it on yearly bases. the AC-21 is to prove that you are in the same field and protect your GC petition

If company A will still remain my sponsor, do I need to get any document from them in case of RFE?


2: In case of using EAD, company B would be my sponsor?

I would really appreciate your help.
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I leave the other questions to give chance for others to answer. Good luck
 
I have a similar question.

I have valid H4 stamp (7th year extention) on my passport and also have valid EAD though spouse's I-485. I am thinking of using EAD to start a business or get a job. In unlikey scenario of 485 rejection, can I get back on H4? My spouse will have valid H1B all along.

If yes, what is the process to get H4 back, knowing that my spouse's H1b will be on its 8th/9th year extention (Our FBI name check is pending for >3 years)
TIA
 
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