EAD or H1B - Which one to go for??

A

Aakash28

Registered Users (C)
Hello Experts,

Have always been surrounded with concerns. Now here is another one -
I am currently on bench (H1B status - valid uptil Dec '2006) with my current employer who sponsored my GC - It might take upto a month atleast before I can find anything else. Now recently I got my EAD and AP approved couple of weeks back but my I-140 is still not approved (everything was file concurrently under labor substituion). My wife is currently here on H4 -

1) My employer is suggesting that I should switch to EAD status as that way they are not obligated to pay me when I am not working and I can take my own time to look for some good contract. If they continue to keep me on H1B then they will start loosing money on me and would have to let me go - and atleast on EAD I can still be with Company. Please suggest what would be the ideal course of action for me at this stage?

2) Also I am thinking that if my GC process gets denied than would I be able to get H1B extension after Dec 2006 (after 6 years expiration) if somehow I manage to keep my H1B?

3) If otherwise I have to go on EAD than what's going to happen to wife - what status would she be on - and will she be able to stay with me in US?

Experts Please help..

Thanks
 
Hello satgym73,

I am confused as to why would I need H1 and H4 extensions?? Please will greatly appreciate if you can throw some light on the specific questions I have addressed - And will 7th year extensions be possible if my I-485 get denied?? Please provide me with some details.

Thanks
 
My understanding is that until you have the I-485 approved, the employer MUST pay the salary stated on the labor certification. If not, you run the risk of I-485 denial due to employer inability to pay.
 
Hello bjorn,

Thanks. I have consulted on this with the company's lawyer/and others. All of them suggest that if you go on EAD than the employer will not be obligated to pay you - he will have to pay only when my PD becomes current - so that I have some current paystubs to show at that time. What I do not understand is why is Company supposed to pay me when I am on H1B - why can't they do the same thing with H1B as they will do when I am on EAD, that is, not pay me.

Please suggest.
 
bjorn

I disagree ... my understanding is that the green card labor is for future employment, so current job/salary with the employer may not be similar. So I think the employer is right, if on EAD they are not obliged by the GC LC yet.
Wife can also apply for EAD and work whereever she wants, as no LC applies to dependent's EAD.

*I may be wrong, though :D
 
HI-B 7th year will be invalid if 485 is denied, which is same for EAD.

So there is no advantage to be on H1-B 7th year. If you did not reach 6 years in current H1-B then being in H1-B will be an advantage, becasue if 485 is denied you can still maintain the H1-B status.
 
Aakash28 said:
Hello Experts,

Have always been surrounded with concerns. Now here is another one -
I am currently on bench (H1B status - valid uptil Dec '2006) with my current employer who sponsored my GC - It might take upto a month atleast before I can find anything else. Now recently I got my EAD and AP approved couple of weeks back but my I-140 is still not approved (everything was file concurrently under labor substituion). My wife is currently here on H4 -

1) My employer is suggesting that I should switch to EAD status as that way they are not obligated to pay me when I am not working and I can take my own time to look for some good contract. If they continue to keep me on H1B then they will start loosing money on me and would have to let me go - and atleast on EAD I can still be with Company. Please suggest what would be the ideal course of action for me at this stage?

Employer has to pay salary when you are on H1b, no matter whether you are on bench or not. If you work on EAD, employer is not much responsible (compare with H1b) for paying if you don't have project.

But if you work for same employer (on EAD), there will be same amount of tax he has to pay on you in case he pays you on bench....

Start working on EAD saves H1b time left on 6 yrs cycle. So in worst case you can use it (in case I-485 deniel)...

once you start working on EAD, you have to apply EAD and AP every year...

I-485 receipt will be valid status (no matter you have H1b, EAD or AP)....

If your company ready to support you for GC then you might start to work on EAD.... you will get lot of oppartunities on EAD than on H1b....

2) Also I am thinking that if my GC process gets denied than would I be able to get H1B extension after Dec 2006 (after 6 years expiration) if somehow I manage to keep my H1B?

You have to apply new H1b that time... you can not continue on same one... if you change to EAD then your H1b cycle stops and will start again when you start working on new H1b....

So if you change now, you might have 1.4 yrs left (assume 6 yrs cycle ends on Dec 2006).... In worst case (I-485 deny) you can apply new H1b and as well as new GC labor at a time.. so that you can extend your H1b after 6 yrs complete....

3) If otherwise I have to go on EAD than what's going to happen to wife - what status would she be on - and will she be able to stay with me in US?

If she has I-485 receipt, thats enough to stay here legally with out work..

Experts Please help..

But keep in mind, I-140 approval is very important... if your GC sponsor is ready to support this you can do whatever he says...

Thanks
Click to expand...
 
clear485 said:
2) Also I am thinking that if my GC process gets denied than would I be able to get H1B extension after Dec 2006 (after 6 years expiration) if somehow I manage to keep my H1B?

You have to apply new H1b that time... you can not continue on same one... if you change to EAD then your H1b cycle stops and will start again when you start working on new H1b....
Click to expand...

is this true ?
 
Thanks everyone,

Still have some doubts about the comments from clear485 -
"But if you work for same employer (on EAD), there will be same amount of tax he has to pay on you in case he pays you on bench...."
- Does this mean that the employer has to pay the same amount of tax on me, even when he is not paying me anything, while I am on bench after switching to EAD status? So will I still be an expense for him? I want that my employer should not bear any kind of expense on my behalf once I am on bench - is that possible?

"Start working on EAD saves H1b time left on 6 yrs cycle. So in worst case you can use it (in case I-485 deniel)..."
- How will switching to EAD save me time on H1B (I have 1.3 years still left) - as my H1b will be cancelled as soon as I switch to EAD in the first place? Once I switch to EAD and later I-485/I-140 gets denied than how much time will I have, to remain in the country? Would I need to reapply for a new H1b or would I be able to utilize the remaining 1.3 years even after switching to EAD? Would I be able to apply for new H1B after I-485 gets denied - meaning would I have enough time?

"If she has I-485 receipt, thats enough to stay here legally with out work.."
- We have a photocopy of the receipt notice for the fees that we submitted for I-485 - would that be enough for her to stay legally-in-status with me over here?

Thanks
 
Forgot to ask one more important related query -

"If your company ready to support you for GC then you might start to work on EAD.... you will get lot of oppartunities on EAD than on H1b.."
- When on EAD Status would I be able to work as a full-time employee for another company B (rather on contract - because it's difficult getting the contract at the rate Company A is asking) - while being still on bench for my orginal company A - meaning can I be an employee of both Company A and B at the same time - Note that I still have't received my I-140 approval.

- Once I get the I-140 approval is the above scenario possible - without applying for AC-21 - which would mean leaving Copmany A?

Thanks
 
Aakash28 said:
Thanks everyone,

Still have some doubts about the comments from clear485 -
"But if you work for same employer (on EAD), there will be same amount of tax he has to pay on you in case he pays you on bench...."
- Does this mean that the employer has to pay the same amount of tax on me, even when he is not paying me anything, while I am on bench after switching to EAD status? So will I still be an expense for him? I want that my employer should not bear any kind of expense on my behalf once I am on bench - is that possible?

What I mean is, if at all he is paying you on bench... he has to pay same amount of tax whether you are on H1b or EAD.... if he is not paying you anything when you are on bench...risk factor for him is more on H1b than EAD....

"Start working on EAD saves H1b time left on 6 yrs cycle. So in worst case you can use it (in case I-485 deniel)..."
- How will switching to EAD save me time on H1B (I have 1.3 years still left) - as my H1b will be cancelled as soon as I switch to EAD in the first place?

Fill I-9 before getting pay...obiviously your H1b will be void...No need of cancel it from your perspective

Once I switch to EAD and later I-485/I-140 gets denied than how much time will I have, to remain in the country?

No timeframe defined by USCIS...

Would I need to reapply for a new H1b or would I be able to utilize the remaining 1.3 years even after switching to EAD?

Yes, you have to apply for new H1b for utilizing those 1.3 years

Would I be able to apply for new H1B after I-485 gets denied - meaning would I have enough time?

Have to leave the country immdly..You can apply premium processing for new H1b just before leaving... then your new employer will send H1b to your country.... so you can get stamp there and come here to work for him...


"If she has I-485 receipt, thats enough to stay here legally with out work.."
- We have a photocopy of the receipt notice for the fees that we submitted for I-485 - would that be enough for her to stay legally-in-status with me over here?

I believe, it is enough to show the proof that you applied I-485

Thanks
Click to expand...
 
Aakash28 said:
Forgot to ask one more important related query -

"If your company ready to support you for GC then you might start to work on EAD.... you will get lot of oppartunities on EAD than on H1b.."
- When on EAD Status would I be able to work as a full-time employee for another company B (rather on contract - because it's difficult getting the contract at the rate Company A is asking) - while being still on bench for my orginal company A - meaning can I be an employee of both Company A and B at the same time - Note that I still have't received my I-140 approval.

Supporting GC means, he has to show that job is there for you and will be placed once after get GC....so don't worry for present employment with company A...you are very fine if he supports you for your GC

you can work for any employer, but the job should be same and similar job classification... and 180 rule of I-485....

If you didn't get I-140 approval, then better to stick with GC Sponsor company...

- Once I get the I-140 approval is the above scenario possible - without applying for AC-21 - which would mean leaving Copmany A?

If you get RFE, then you can submit AC-21

Thanks
Click to expand...
 
AlienBhai
When my lawyers submitted my I-140 and I-485 concurrently, they specifically told my employer to pay me the salary as stated on the LC immediately in order to NOT be denied due to ability to pay, meaning I got a pay raise to meet that salary reqirement, at least for the I-140 approval process. I don't really know if salary is an issue for my I-485 adjudication. That's what I based my initial response on. In other words, my lawyers told me that this is how it works, and my company just agreed and ensured that my salary matched the salary on my substitute labor certification so we could submit paystubs and a salary statement letter proving this.

Akash28
When on the H-1B, you have filed and received an approval for a Labor Condition with the DOL, meaning that your employer has agreed to pay you the salary stated on the Labor Condition for the duration of the H-1B period. This is what the DOL certifies through the Labor Condition (not to be confused with Labor Certification). If the employer does NOT pay that salary at a later point, you violate the H-1B and Labor Condition terms that you were initially approved for. That violation, if the USCIS finds that out, can possible lead to GC denials (I'm guessing) since you and your employer are then violating your H-1B and Labor Condition obligations.
 
bjorn said:
If the employer does NOT pay that salary at a later point, you violate the H-1B and Labor Condition terms that you were initially approved for.

It is wrong...unless your employer cancels your H1b or you resigned, you are safe in status wise....

If you want, you can file a case against your employer in labor court and win the case.... this is the main reason most of the Consulting employers scares if they don't provide projects.... also client employers will cancel the H1b in case they fire the employee....

That violation, if the USCIS finds that out, can possible lead to GC denials (I'm guessing) since you and your employer are then violating your H-1B and Labor Condition obligations.
Click to expand...
Employee is not violating the rule unless he was fired and cancelled his H1b.. In case I-485 deny based on this, a good attorney can argue and could bring your GC approval...
 
The employer must pay the minimum salary stated on the Labor Condition. That's the whole point of the Labor Condition process, to ensure that foreign workers are paid the correct wages, which the DOL certifies through the Labor Condition process. If not, what's the point of the Labor Condition process? You can always get paid more, but not less. If the employer wants to pay you less, you need to reapply for a new Labor Condition and H-1B to get the lower salary cetified by the DOL, the same way as if you are to change your job duties more than 50%.
 
Hello bjorn,

My I-140, EAD, I-485 and Advance Parole - all were filed concurrently under labor substitution. EAD and Advance Parole got approved but got a RFE on I-140 asking for the employer to submit tax statements etc. as a proof of the ability to pay. Got the same RFE for a colleague of mine at the same time - His case was also the same - another labor substitution - the only difference being he was an EB2 (and he was from Brazil) while I am EB3 - he got his GC within 3 weeks of filing a response for I-140 RFE. Now in my case also we submitted the same response at the same time (On June 10th, 2005) - but I have'nt heard anything as of yet regarding my I-140 even though it has been now more than 130 days. I do not know why would I-140 approval take so much time after responding to an RFE. Hopefully the above info might be of help to you.
 
Perhaps your Brazilian friend's priority date was earlier than yours, in addition to him being EB-2 vs you EB-3 and if you are from China or India, maybe the USCIS adjudicate these I-140 cases later due to retrogression. Or it may just be that there is no rhyme or reason or consistencies to the USCIS process of various cases.
 
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