Does using AC21 impiles using EAD and wife loosing H4 status??

[guddu1977]

Hello All.

Thanks to all of you out there maintining this mailing list.
I have few questions wrt my specific case:

My EB3 has priority date of March 2006 and an approved I140.
I got married on July 8th in India but my wife would not be joining me till Jan 2008.(Did a court marriage and formal marriage is in Jan 2008). I am filing for my I485 and EAD this month and have the following questions:

- First of all can my wife use "Follow to Join" option to apply for her I485 or this option is only applicable after receiving the Green Card.
- Does using AC21 for job change implies using EAD? My wife will be joining me on H4. So if i want to change my job in future i will have to get my H1 transfer rather than using EAD.
Can my previous emplyer revoke my I140 even if i have EAD that i have not used. I don't want to loose my priority date.

**What is the best option for me if i want to change jobs after January 2008 i.e. after i get my EAD. Please note that i have only used 2 years of my H1B so far. I don't want to loose my priority date and there is a possibility that my emplyer may revoke my I140 if i leave my present job.

Thanks.
Guddu.

 

[TheRealCanadian]

- First of all can my wife use "Follow to Join" option to apply for her I485 or this option is only applicable after receiving the Green Card.

She can only file an I-485 once she is physically in the US.

Does using AC21 for job change implies using EAD?

No, you can switch jobs using an H-1 or any other non-immigrant working status you qualify for.

My wife will be joining me on H4. So if i want to change my job in future i will have to get my H1 transfer rather than using EAD.

Exactly.

Can my previous emplyer revoke my I140 even if i have EAD that i have not used. I don't want to loose my priority date.

Sure, it has nothing to do with your EAD. In order to switch jobs using AC21 your I-485 must be pending for at least 180 days.

 

[guddu1977]

Thanks for a quick reply. Just to clarify further on my query:

- When she is physically in the US in Jan 2008 i am sure priority dates for my EB3(March 2006) would not be current. So can she use "Follow to Join" to file for I485 as this option does not need PD to be current. Or this option can only be used after i get my final Green Card?

- If i use AC21 to switch jobs when my I485 is pending for more than 180 days does it affect my wife's H4 status in any way. Given that i am switching job based on H1 transfer.

- From your response what i understand is that switching job using AC21 by means of H1 transfer my PD would be safe and my previous employer cannot in any way affect my 485 application. Am i correct??

An additional and may be dumb question.
- Are AC21 and EAD connected in any way as both comes into affect after 180 days of pending 485 application.

Thanks a lot in advance.
Guddu.

 

[TheRealCanadian]

So can she use "Follow to Join" to file for I485 as this option does not need PD to be current.

You are mistaken; FTJ always requires a current priority date. When her PD becomes current after she enters the US, she files the I-485. Not before.

If i use AC21 to switch jobs when my I485 is pending for more than 180 days does it affect my wife's H4 status in any way. Given that i am switching job based on H1 transfer.

So long as you remain in H1 status, your wife will remain in H4 status.

From your response what i understand is that switching job using AC21 by means of H1 transfer my PD would be safe and my previous employer cannot in any way affect my 485 application. Am i correct??

If you switch using AC21 your PD would be safe. Whether you use an H1 or an EAD is irrelevant.

Are AC21 and EAD connected in any way as both comes into affect after 180 days of pending 485 application.

You are again mistaken. An EAD is effective and valid as soon as it is approved.

 

[banta4gc]

Read this memo, if you want to understand AC21 - before you embark on asking questions,

http://www.uscis.gov/files/pressrelease/AC21intrm051205.pdf

Your employer can always revoke I140 after 6 months of I485 filing and can cause some trouble (potential 30 day - I485 denial notice)...but you should be covered as per AC21 regulation....as your I140 becomes portable for a same/similar job...

Google for Yates Memos / AC21 ...U will see 3-4 memos issued clarifying AC21 in the last few years...