Apply for new EAD or extend H1B?

M

mfsn

Registered Users (C)
My 8th year H1B is expiring in 6 months and my I140 has just been approved. Which option is best?

1) Apply for fresh EAD and AP or
2) Apply for H1B extension

Which one will give me more freedom to travel, change jobs, etc? How long will I be able to extend my status for each case?

Thanks.
 
If you are serious about being in US for a while, get the extension on H1B.

Once you move to EAD, if for any reason your 485 petition gets rejected, this is how it goes:

* When you are on EAD, you are considered to be on an immigrant visa.
* While you are within US, you may change your status from a non-immigrant visa (H1, F1 etc) to an immigrant visa (GC) but not vice versa. To change from immigrant to non-immigrant visa status, the only way is to go out of the country and come back in with a new non-immigrant visa by appearing at US consulate in your country.
* If for any reason your 485 gets rejected, you would be in a soup -- in order to continue working in US you need to get a new H1B visa by going outside the country. Since your H1B would not be considered an extension at that time, you would come under the cap restrictions. Based on how soon the 2007 cap for H1Bs was reached, I guess you would end up outside the country for at least 6 months.

Regarding advantages:

* Freedom to Travel -- H1B (You don't need to apply for a separate document, read AP, to re-enter US).

* Change Jobs -- Neither (unless you have your 485 already filed and is more than 180 days old, you may not apply for AC21 while working on EAD also). As with H1B extension, you may change job if your current employer agrees to keep the GC process alive and your new employer needs to file for a new H1B extension based on the GC process with your current employer.

* How long you may extend -- I think you can extend either EAD or H1 as long as there is no final decision on your GC case.
 
If my I485 gets rejected, I will be forced to leave the US regardless of being under an extended 9th-year H1B or new EAD/AP, right?

So it probably doesn't matter much which one I should choose, except for the fact that the costs associated with EAD/AP are much less than extending H1B.
 
Except for the fact that one has numerous clearly defined ways to fight I-485 rejection, prolonging their stay in this country. Few options would be an MTR, appeals court, law suit against USCIS etc. Whereas, I am not clear whether one can work on an EAD that was based on a 485 that is now rejected, even if the decision is being appealed. Without income, I would rather leave this country, rather than paying for all the legal expenses out of my savings.

While fighting the original case, if one has the stomach for it, they may as well start another labor processing parallelly. If they are lucky and cross that 365 day mark on the new labor/140/485 track, they will get more extensions or the GC itself based on the new filings even if the old one is doomed.

Ultimately, it all depends on how badly one wants to be in this country. Someone might say to heck with it as soon as they get the rejection... some might fight with all options they can find. One has to decide for their own self. I am merely conveying the options one has, if one chooses to fight the unfortunate outcome.
 
Ok, my H1 expires in Jan/07, my I-140 has already been approved and my I-485 approval is pending for 4+ months now.

- How close to my H1 expiration date should I wait before applying for an extension?

- Is my H1 status automatically protected as soon as I get the receipt notice from CIS or only after it gets approved?

- I would like to delay my H1 renewal as much as possible because my I-485 could get approved before my H1 expires. However, if I wait too long and get an RFE before applying for H1 renewal, can I still go ahead and nenew it?

Thanks.
 
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