Can H1B have another job after obtaining EAD

[faczulin]

I'm planning to apply in the EB2-NIW category now, before the end of my H1B employment in May 2010. Assuming that I get EAD, can I start working for the new employer concurrently with my existing job? I know I can do that if one applies for a second H1B, but I'm not sure if I can do that also with EAD. Specifically, I want to start my own company, and use EAD to appoint myself as an officer in this company. Is this feasible?

Also, what happens if I work on EAD, and my EB2-NIW application is subsequently denied? Would this lead to problems?

 

[baikal3]

I'm planning to apply in the EB2-NIW category now, before the end of my H1B employment in May 2010. Assuming that I get EAD, can I start working for the new employer concurrently with my existing job? I know I can do that if one applies for a second H1B, but I'm not sure if I can do that also with EAD. Specifically, I want to start my own company, and use EAD to appoint myself as an officer in this company. Is this feasible?

Also, what happens if I work on EAD, and my EB2-NIW application is subsequently denied? Would this lead to problems?

Yes, if you get an EAD, you can work for employers other than your H1B employer. You'd need to file I-140 and I-485 concurrently in order to do that since an EAD application may only be file if I-485 is pending.

There are consequences, however. As far as I understand, if you start working on EAD, you go off H1B status and into the "adjustee" status. (The same thing would happen if you use advanced parole for a reentry, rather than an H1B visa stamp). If your I-140 is denied, then I-485 is denied as well, and you would go out of legal status. You can regain H1B status by travelling outside the country and reentering using the H1B visa stamp.

If you never use EAD, you remain in the H1B status throughout and then, if I-485 is denied, you simply revert back to H1B status.

 

[faczulin]

Thanks. One more question. Suppose my original H1B expires while I'm on EAD, and I can no longer go back to the original H1B status in case of EB2-NIW rejection, and it may be hard to apply for a new H1B until my new company really takes off. What are my options to retain the ability to work at this point? Could I simply reapply for EAD or keep the EAD if there is another green card application submitted (like EB1 or whatever)?

 

[baikal3]

Thanks. One more question. Suppose my original H1B expires while I'm on EAD, and I can no longer go back to the original H1B status in case of EB2-NIW rejection, and it may be hard to apply for a new H1B until my new company really takes off. What are my options to retain the ability to work at this point? Could I simply reapply for EAD or keep the EAD if there is another green card application submitted (like EB1 or whatever)?

I am not 100% sure, but I believe that the answer to your last question is "no". With a couple of rare exeptions, you must have a valid non-immigrant status in order to file I-485.

So if your H1B has run out, and after that your I-140 and a concurrently filed I-485 are denied, you will not be able to file another I-485 without leaving the country and reentering in a valid nonimmigrant status first. Basically, once I-485 is denied, if you do not have a valid H1 (or other) nonimmigrant status to fall back upon, you immediately go out of legal status in the U.S. and must leave the country immediately. The only other thing you could do is, if you believe that I-485 was denied improperly, you could file a motion to reopen (MTR) the I-140 and I-485 applications. You'd certainly need a lawyer for that and the chances of it working are usually slim. If the motion to reopen is granted, USCIS will reconsider the denials of the I-140 and I-485 applications although the final decision may still be a denial. While the MTR is pending, and if it is granted, while the reconsideration is taking place, you'll still have legal status in the U.S. If the motion to reopen is denied, you do need to leave immediately and have no other options, short of applying for asylum. I am not sure what effect a motion to reconsider would have on an EAD, but I doubt that you'd be able to use an EAD while MTR is pending.

Also, if I-485 is denied and you do not have a valid nonimmigrant status to fall back upon, you will not, as I understand it, be able to file a petition for a change to another nonimmigrant status, such as another H1B. In that situation, if you find another H1B employer, you'd need to go outside the country and apply for a new visa abroad.

So the bottom line is that unless your I-140 case is very strong and is unlikely to be denied, it is a very bad idea to let your H1B status lapse while I-140/I-485 are pending.

 

[nscagony]

You can always go back to H1B status by re-applying for an H1B. You will not be subject to the quota. But you will have to leave and re-enter the US to get back into H1B status once the new petition has been approved.