EAD Denial and H1 Visa

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gcwaiter_74

Registered Users (C)
Gurus,

I have applied for my EAD and plan to use it as soon as I get it. I still have 3 yrs left on my H1. If I-140 gets denied for any reason, the EAD will also get invalidated. In such a case, can I get a H1 transfer or do I have to get a new H1 visa?
Some people tell me that I will no longer be elgible to get a H1 visa at all and have to leave the country immediately.
In case I still continue on my H1 and my wife uses EAD and then if 140 gets denied, will I be still on status? And how easy or difficult will it be for my wife to come back to H4 visa?
Please advise
 
Originally posted by gcwaiter_74
Gurus,

I have applied for my EAD and plan to use it as soon as I get it. I still have 3 yrs left on my H1. If I-140 gets denied for any reason, the EAD will also get invalidated. In such a case, can I get a H1 transfer or do I have to get a new H1 visa?
Some people tell me that I will no longer be elgible to get a H1 visa at all and have to leave the country immediately.
In case I still continue on my H1 and my wife uses EAD and then if 140 gets denied, will I be still on status? And how easy or difficult will it be for my wife to come back to H4 visa?
Please advise
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If you use EAD you give up your H1 status. Simultaneously your wife also will lose her H4 status since H4 is derivative of and contigent upon your H1 status.
If you want to go back to H1 status, you will need a new H1 petition, not H1 transfer.
If you continue on H1, your status will not be affected by your wife using EAD. However she will no longer hold H4 status. She will have to apply for a new H4 to get back into H4, not H4 extension.
Why are you contemplating using EAD right away?
 
”If you continue on H1, your status will not be affected by your wife using EAD. However she will no longer hold H4 status. She will have to apply for a new H4 to get back into H4, not H4 extension.”
If she used EAD and husband is maintaining H1B she can be on H4 again, for that she has to depart US and enter again on H4 status (she should have valid H4 visa in her passport) she will get new I-94 based on H4 visa. She can APPLY for H4 extension with form I-539 (she should not be using EAD at that time) recently one of my friend spouse got H4 extension from VSC, she used EAD in past and now on H4 status because lawyer told them to maintain H1 and H4 till I-485 is cleared (the case is AC21) lawyer wanted this if due to any reason I-485 is denied they can have safety of H1 and H4 status to remain in US
 
I was thinking of using the EAD since I was not very conversant with the H1 rules if the EAD gets denied. Now, I am probably going to stick with H1
But I wanted my wife to use the EAD since getting a H1 is expensive.
But will there be any problems with 140 approval if my wife uses EAD and I continue using H1? I know its not advisable, but I have few options left :-(
 
I hope you have applied I-485 and your I-140 is approved
Or it is concurrent filing of I-140 and I-485?
 
I wish my 140 was approved by now. No, It is concurrent filing and since the company is not doing very well, I am doubtful about the 140 approval. How bad should the financials of a company be for 140 to get denied? Is it only if they feel they cannot pay the salary mentioned in LC?
 
I wish my 140 was approved by now. No, It is concurrent filing and since the company is not doing very well, I am doubtful about the 140 approvals. How bad should the financials of a company be for 140 to get denied?
-- If the BCIS decide that company will not be able to pay they can deny the I-140 but they will send RFE and that should be replied by your Lawyer/employer. Any other past violations by the company can also be looked by BCIS for the company
Is it only if they feel they cannot pay the salary mentioned in LC?
Many other factors are considered by BCIS before they approve your I-140 like your educational qualifications, your educational evaluation, and company ability to pay the wages.
Best option to wait for I-140 approval and then I-485 approval ( or let the I-485 cross 180 days after I-140 approval) and try to maintain H1B status with your employer, it will be in your best interest.
 
Since you are doing concurrent filing your EAD application would probably not move until the service center deems your 140 to be 'approvable'. E.g. if your 140 has an RFE then your EAD will stall until the RFE is satisfied and the service center deems your 140 as 'approvable' again. Please correct me if I wrong: I have not heard of many cases when concurrent applicants received their EAD without getting their 140 approved within +/- 2 months of the EAD.
 
I dont think so. Many of my friends have got their EAD and they havent heard anything abt their 140 even after 4 to 6 months. It also depends on the BCIS center which processes the appl. I guess. In Vermont, EAD is processed within 2 montsh and 140 takes arnd a year.
 
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