Can EAD/AP dependent file EB2-NIW? Please help

[Hugoo]

The status of my wife and I is I-485 pending based on her employment (EB3). I currently work as a post-doc with EAD. We have used AP once right after my graduation to go back home. At that time, the lawyer told us that it was fine for us to use AP and after coming back, I can apply for H1B. Weren’t we naïve? The lawyer was totally wrong. I lost my non-immigration status by using AP. For now, we don't know when our I-485 will be approved. In the mean time, my wife can not change to a different job. So I wonder if I can file an EB2-NIW application in our situation.

On a related issue, the international office in my school told me that they could not sponsor me for a H1B visa once I used AP. Is there anyway that I can go around this, like apply for H1B as an individual?

Any of your advice is highly appreciated!

 

[jllag1]

The status of my wife and I is I-485 pending based on her employment (EB3). I currently work as a post-doc with EAD. We have used AP once right after my graduation to go back home. At that time, the lawyer told us that it was fine for us to use AP and after coming back, I can apply for H1B. Weren’t we naïve? The lawyer was totally wrong. I lost my non-immigration status by using AP. For now, we don't know when our I-485 will be approved. In the mean time, my wife can not change to a different job. So I wonder if I can file an EB2-NIW application in our situation.

On a related issue, the international office in my school told me that they could not sponsor me for a H1B visa once I used AP. Is there anyway that I can go around this, like apply for H1B as an individual?

Any of your advice is highly appreciated!

Yes, you can independently file EB2-NIW if you choose to. As regards to the second Q, using AP has nothing to with the ability to file for H1, unless I am missing something . If you are in the group with exhausted quota, than you are out of luck, but otherwise they should be able to file H1B for you. In the worst case, you might get H1B approval without I-94 (as you are a parolee). You than have to go out of country and apply for a H1B visa and use that to get back on H1 status.

 

[dzxing]

change to H1 should be possible

hi.

> The status of my wife and I is I-485 pending based
> on her employment (EB3). I currently work as a
> post-doc with EAD. We have used AP once right
> after my graduation to go back home. At that time,
> the lawyer told us that it was fine for us to use AP
> and after coming back, I can apply for H1B. Weren’t
> we naïve? The lawyer was totally wrong. I lost my
> non-immigration status by using AP.

My understanding is that indeed when you enter the country showing AP at the port of entry, your status becomes AOS. But after that you _can_ apply for COS to H-1 (but perhaps to the original employer only?), and that should be granted.

> On a related issue, the international office in my school
> told me that they could not sponsor me for a H1B visa
> once I used AP. Is there anyway that I can go
> around this, like apply for H1B as an individual?

Did you have H-1 from the school before you used AP, or you never had H-1?

The responsible officer in my school told me that if a researcher is in H-1 status, he applies for GC through university, and goes for travel using AP, then, after he comes back, the university will file COS to H-1 and it will be granted. That discussion happened couple of years ago, and by now I do not remember _why_ the university is doing that (to make sure the person does not fall out of status if GC is denied?...), but I am sure there is such possibility.

Now, that may apply only if person was _originally_ on H-1 with the same univeristy before GC application, which might not be the case in your situation. So you might want to research that topic further.

IANAL and all that.

/dzxing

 

[Hugoo]

Yes, you can independently file EB2-NIW if you choose to. As regards to the second Q, using AP has nothing to with the ability to file for H1, unless I am missing something . If you are in the group with exhausted quota, than you are out of luck, but otherwise they should be able to file H1B for you. In the worst case, you might get H1B approval without I-94 (as you are a parolee). You than have to go out of country and apply for a H1B visa and use that to get back on H1 status.

Thanks for the reply! Yes. I read somewhere that it is fine to have two pending I-485s. So I think I do can file EB2-NIW even though I am in AOS and work with EAD/AP.

About the H1b, what you said is exactly what our lawyer said. I know H1b and EAD/AP can coexist. It is not harmful to apply for and have EAD and AP. But using them is a different thing. I think the key is once AP is used, you choose to give up your non-immigration status. It is wise to keep a non-immigration status while waiting for GC, just in case that GC is denied. We learned it in a hard way.

 

[Hugoo]

hi.

> The status of my wife and I is I-485 pending based
> on her employment (EB3). I currently work as a
> post-doc with EAD. We have used AP once right
> after my graduation to go back home. At that time,
> the lawyer told us that it was fine for us to use AP
> and after coming back, I can apply for H1B. Weren’t
> we naïve? The lawyer was totally wrong. I lost my
> non-immigration status by using AP.

My understanding is that indeed when you enter the country showing AP at the port of entry, your status becomes AOS. But after that you _can_ apply for COS to H-1 (but perhaps to the original employer only?), and that should be granted.

> On a related issue, the international office in my school
> told me that they could not sponsor me for a H1B visa
> once I used AP. Is there anyway that I can go
> around this, like apply for H1B as an individual?

Did you have H-1 from the school before you used AP, or you never had H-1?

The responsible officer in my school told me that if a researcher is in H-1 status, he applies for GC through university, and goes for travel using AP, then, after he comes back, the university will file COS to H-1 and it will be granted. That discussion happened couple of years ago, and by now I do not remember _why_ the university is doing that (to make sure the person does not fall out of status if GC is denied?...), but I am sure there is such possibility.

Now, that may apply only if person was _originally_ on H-1 with the same univeristy before GC application, which might not be the case in your situation. So you might want to research that topic further.

IANAL and all that.

/dzxing

Thanks for the advice! I never had H1B. I changed from F1-OPT to this EAD directly. I want to find out if it is possible to change from an immigration status to a new non-immigration status. I know it is not a normal thing for people to do. But is it at all possible and not prohibited by any immigration law?

The guy in the international office also told me that they can file a petition for H1b only if our GC is denied and we have enough time left to stay legally in US. So dropping I-485 is our last resort.