EAD/h1b/485 questions

[glem]

Hi everybody, I must say this is a great forum, I just discovered it though, so this is my first post.

I have a couple of questions in regards to my own situation.
First let me tell you my situation.

After Labor was approved, everything was files concurrently 140/485/765/AP in mid May 2006.
Right after it was filed I got laid off. Then I transferred my H1b to a new employer.

I got reciept notices on everything, 140, 485 etc. (filed at Nebraska).

I just got 765 and advanced parole approved, and we (my wife and I) got our cards in the mail.

I have transferred my H1b to a new employer where I work now.

So I have a couple of question in that regard, just to make sure I do things the right way,



1. Since the 765 can't be transferred until my 485 has been pending for 180 days, right now I guess I can't really use my card for anything except if I worked for the company that filed for it, right ?

2. Even though I got my 765 approved and card, is it ok for me to not use it and just stay on H1b for work and travel ?

3. If I stay on H1b for work and travel, can my wife start using her 765 and card without affecting my H1b ?

4. If I stop working for my current employer and my H1b get cancelled, could I still stay lawfully in US on my pending 485 and just not work, and then transfer my 765 and card to a new employer when 485 has been pending for 180 days ?


I think that's it for now, thanks in advance.

Glem

 

[glem]

ok, not so impressed

I was very impressed with this forum for the last month or so reading through a lot of great threads with loads of good information, but nobody seems to want to take an attempt on replying to my questions

 

[EricS]

As per the law, to be covered under AC21, your 140 must be approved and 485 should be pending > 180 days. As you got laid off before your 485 was pending for 180 days and 140 was also not approved, you are not covered under AC21. You need to start your GC processing from LC with the new employer. Although you received EAD, it is not valid.

That said, now lets look at it from a different angle. These are just my thought, consult with a atorney before taking any decision based on this. This is a risky approach and if USCIS does not think this way then they may not approve your GC. Here is the deal; Lets assume that your GC filing employer is ready to co-operate with you. This means that if they ger a RFE on 140, they will respond to it. Legally, they will say the job opprtunity is still there and they will re-hire you once you get your GC. Doesn't make much sense, but lets say you were not laid off but you temporarily joined another employer and you will join this employer back after some time or once you get your GC. In this scenario, once your 140 gets approved and 485 is pending > 180 day, then you have chances of keeping this GC process alive. I will answer your questions based on this assumption.

Hi everybody, I must say this is a great forum, I just discovered it though, so this is my first post.

I have a couple of questions in regards to my own situation.
First let me tell you my situation.

After Labor was approved, everything was files concurrently 140/485/765/AP in mid May 2006.
Right after it was filed I got laid off. Then I transferred my H1b to a new employer.

I got reciept notices on everything, 140, 485 etc. (filed at Nebraska).

I just got 765 and advanced parole approved, and we (my wife and I) got our cards in the mail.

I have transferred my H1b to a new employer where I work now.

So I have a couple of question in that regard, just to make sure I do things the right way,



1. Since the 765 can't be transferred until my 485 has been pending for 180 days, right now I guess I can't really use my card for anything except if I worked for the company that filed for it, right ?

You should not try to use your EAD as right now it is not valid. Use it once your 140 gets approved and 485 pending > 180 days.

2. Even though I got my 765 approved and card, is it ok for me to not use it and just stay on H1b for work and travel ?

Yes.

3. If I stay on H1b for work and travel, can my wife start using her 765 and card without affecting my H1b ?

Yes, her using EAD has no effect on your H1 status, but do not let her use it just yet.

4. If I stop working for my current employer and my H1b get cancelled, could I still stay lawfully in US on my pending 485 and just not work, and then transfer my 765 and card to a new employer when 485 has been pending for 180 days ?

I will recommend that you stay on H1 for now. Moreover, there is no such thing as transferring EAD to new employer. Using EAD, you can work for any employer without any transfer etc. Once your 485 is pending > 180 days and 140 is approved, that means you are covered under AC21. There are certain conditions for AC21 also, like job responsibilities should be same and so on.

I think that's it for now, thanks in advance.

Glem

One last suggestion. As you said you were able to file 140/485 concurrently, it seems like
a> either you are not from a retrogressed country
b> or your LC was too old an the PD is current now.

If a> is true, then file a new PERM LC witht he new employer that you are working for now. The process will be much smoother and you will be able to file 140 485 in couple of months again.
If b> is true then take the risk as I mentioned above.

Best of luck!

 

[TheRealCanadian]

As per the law, to be covered under AC21, your 140 must be approved and 485 should be pending > 180 days. As you got laid off before your 485 was pending for 180 days and 140 was also not approved, you are not covered under AC21.

This is entirely incorrect. If the I-140 is not withdrawn or revoked before 180 days have passed, then there is an excellent change that AC21 benefits will apply. Loss of non-immigrant employment before 180 days does not automatically doom the I-485. Before you say what the law says, you should realize just how vague and silent the AC21 statutory language is.

You should not try to use your EAD as right now it is not valid. Use it once your 140 gets approved and 485 pending > 180 days.

This too is incorrect. The sole criteria for EAD validity under C9 is that the I-485 remainin pending. If the I-485 has not been denied then the EAD is valid and remains valid. It's not invalid today and magically valid down the road when day 181 comes around.

If the I-140 is not approved and the layoff was prior to 180 days there is a risk that there will be an RFE not responded to or the I-140 will be withdrawn, so using the EAD is a risk. But there is no question of its current validity.