EAD-Self emloyment

E

exploitedMD

Registered Users (C)
Hi Gurus,
Here is the situation:
I am on H1B,got an EAD,worked more than 180 days after I 140 approval with the GC sponsoring employer.Now I want to start my own practice on the EAD.Can I do it without jeopardising my immigration apllication?
Please give your opinions on this one as this could mean a major career move.
Guru Hadron,please chip in.
Thanks
 
You asked for it, so now you have to listen to my rambling:

-- The moment you use your EAD, you change from H1b status to 'adjustee'. This means, unless you re-enter on your H1b stamp, your status is dependent on the I485 remaining active (also, if your spouse is on H4, her status becomes invalid the moment you use EAD. make sure she has a pending I485 before you use EAD).

-- The AC21 law allows you to change to a different job in the same field 180 days after I140 is approved AND I485 is filed. Don't know how it works if you are self-employed (I would register a P.C. anyway. It'l cost you to set up, but the tax advantages and insulation from certain business risks is probably worth it).

-- Now, despite AC-21, your employer can withdraw the I140 petition if you leave him. This SHOULD keep your I485 intact, but if you look around in the I140 and I485 forums, you will see that there are plenty of people who got their I485 denied without warning after the employer withdrew I140. This is a problem if your status depends on it (by using EAD). You can file a 'motion to reopen' claiming the AC-21 law, but in the interim you are very vulnerable. Particularly if you made investments to start your own shop, not being able to work legally (bc your EAD becomes void after I485 denial) can crush your business.

Don't know. If your employer is a slave-driver, you might want to consider changing jobs to a better employer but remain an W-2 employee with a H1b transfer. If your employer is allright but your salary blows, you could use your freedom as leverage to negotiate a better salary. Physician practices usually don't like to loose people, after all you generate revenue for them.

Difficult decision !
 
Last edited by a moderator:
"http://desitalk.newsindia-times.com/2005/10/07/immi-index.html

If you invoke AC-21 and concerned that your employer might revoke 140, then it is a good idea to send a letter to USCIS immediately after you change the jobs, stating your current position, reponsibilities, salary etc to prove that the jobs are similar.

Good luck.

8. Can an alien port to self-employment under the provisions of the Immigration & Nationality Act?
A. Yes, as long as the requirements are met. First, the key is whether the employment is in the "same or similar" occupational classification as the job for which the original I-140 was filed. Second, it may be appropriate to confirm the new employer and the job offer are legitimate through an RFE to the adjustment applicant for relevant information about these issues. Third, as with any portability case, USCIS will focus on whether the I-140 petition represented the truly intended employment at the time of the filing of both the I-140 and the I-485. This means that, as of the time of the filing of the I-140 and at the time of filing the I-485 if not filed concurrently, the I-140 petitioner must have had the intent to employ the beneficiary, and the alien must have intended to undertake the employment, upon adjustment. Adjudicators should not presume absence of such intent and may take the I-140 and supporting documents themselves as prima facie evidence of such intent, but in appropriate cases additional evidence or investigation may be appropriate.


exploitedMD said:
Hi Gurus,
Here is the situation:
I am on H1B,got an EAD,worked more than 180 days after I 140 approval with the GC sponsoring employer.Now I want to start my own practice on the EAD.Can I do it without jeopardising my immigration apllication?
Please give your opinions on this one as this could mean a major career move.
Guru Hadron,please chip in.
Thanks
Click to expand...
 
Very important clarification. According to this, after 180 days of your 485,140 withdrawal by the emplyer should not affect your 485.

Question 11. When is an I-140 no longer valid for porting purposes?
Answer: An I-140 is no longer valid for porting purposes when:
Memorandum for Service Center Directors, et al. Subject: Interim Guidance for Processing Form I-140 Employment-Based Immigrant Petitions and Form I-485 and H-1B Petitions Affected by the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) (Public Law 106-313) Page 7
A. an I-140 is withdrawn before the alien’s I-485 has been pending 180 days, or
B. an I-140 is denied or revoked at any time except when it is revoked based on a withdrawal that was submitted after an I-485 has been pending for 180 days.
 
Thanks for the replies esp Hadron--You are the Man!
Now I heard that it is a big deal to withdraw the I 140 petition(apparently costs a ton of money and is a big hassle and that even big corporations dont do it )--Any opinions on that one?
Without knowing a case number or any details really,can an employer contact USCIS and ask for withdrawal of the I 140 petition?---Sounds sneaky,but my employer is ignorant and has not kept any records of the petition.
BTW,my lawyer(one of the NYC biggies) assures me thats it is OK,but I still want to know you guys` opinion.
Thanks a lot guys,keep up the good work.
 
Now I heard that it is a big deal to withdraw the I 140 petition(apparently costs a ton of money and is a big hassle and that even big corporations dont do it )--Any opinions on that one?
Click to expand...

1. Employers attorney writes 1 paragraph letter 'The alien the petition was filed for does not work for this corporation any more and we have no intent to employ him in the future'.
2. Letter signed by 'responsible corporate officer' (boss of HR, CEO).
3. Employers attorney attaches copy of I140 receipt.

End of story.
 
Last edited by a moderator:
Hadron, was hoping you could help clarify some Issues about working with an EAD.
I am currently doing my waiver with a VA on an H1B visa. However before the rule excepting VA's from the cap, the VA had intended to apply for the NIW- which would have required an EAD to complete the waiver(no H1). In the VA handbook it identifies this as an option if H1B visas are no longer available. Hence I am unable to understand why it is often said(on this forum) that having a H1B visa is required to complete the 3 year waiver.
My NIW-1140 had been approved and my wife has and uses her EAD based on her pending -485.If I apply for an EAD(since I also have a pending 485) and use it to work at the VA for 5 years(and moonlight),how would that jearpodise my pending 1-485? I understand that my wife using her EAD now invalidates her H4(?), as using my EAD would invalidate my H1B.My point is that I am not sure you need a valid H1B to complete the J waiver, as long as your I-485 is pending and not denied,hence you should able to use an EAD,during the J1 waiver
 
I am not sure you need a valid H1B to complete the J waiver, as long as your I-485 is pending and not denied,hence you should able to use an EAD,during the J1 waiver
Click to expand...

Unless there is something I don't know about the VA, you MUST do 3 years in H1b status in order to be eligible to adjust status.

During the I485 adjudication there is a step where they pull up your visa history, check whether you ever had a J1, check whether you obtained a waiver and follow up whether you did the 3 years 'in H1b status'. If this test is negative, your I485 is denied.

This is from the shusterman website FAQ:

21. Question: After being granted an interested government agency (IGA) J-1 waiver by the BCIS, is it possible to apply immediately for immigrant status through a national interest petition without, for example, being in H-1B status first?

Answer: If a waiver is obtained through an interested government agency, state or federal, and BCIS approved the waiver after September 30, 1996, the current BCIS view is that the physician must work in H-1B status for three years before applying for permanent residence. However, an immigrant visa petition may be approved during the three year period; it is the application for permanent residence which cannot be filed until three years of service in H-1B status are completed.
 
Last edited by a moderator:
Hadron,thanks for your great insight as always.
Below is the excerpt from the VA hand book,detailing the process of applying for the NIW and EAD in the VA.I know it is a long read but please bear with me.The most important paragraph is in bold.I think there might be some confusion over this rule.The rule where you were not allowed to file an adjustment of status while doing a J waiver has since been succesfully challenged and changed.Hence you can now file your I-140 and 485 concurrently which you could not do formely,when you had to wait till after your 3 year waiver to file a 485,even though your 485 cannot be adjudicated untill after the 5th year

VHA HANDBOOK 5005.1 January 26, 2005
12
(7) If H-1B visas are not available when USCIS grants the alien a waiver of the 2-year home residency requirement, and the alien is to work full-time for VA, a facility may file a petition for the Exchange Visitor to become a permanent resident alien under the national interest waiver provisions of 8 CFR, Parts 204 and 245. A national interest waiver of the job offer requirements for employment-based immigrant petitions may be granted to physicians who agree to work fulltime in an area designated by the Department of Health and Human Services (DHHS) as having a shortage of health care professionals, or in a VA health care facility, for a period of 5 years. Since USCIS regulations require full-time VA employment for a national interest waiver, this option is not available for joint appointments between VA and an affiliated medical school.
(8) To obtain a national interest waiver for an alien, the facility must file the following
documents with the appropriate USCIS Service Center:
(a) USCIS Form I-140, Immigrant Petition for Alien Worker.
(b) A copy of an employment commitment letter, issued to the alien within 6 months prior to the date the petition is filed, which describes the position offered, the terms and conditions of employment and states that the employment will be full-time with VA.
NOTE: A facility may not make an employment commitment beyond a 3-year period because non-citizens may only be appointed on a temporary basis, not to exceed 3 years. However, an employment commitment of 3 years or less satisfies the documentation requirement established for VA.
(c) A letter from the facility Director to the USCIS Service Center dated within 6 months
prior to the petition submission, attesting to the fact that the alien’s work is or will be in the public interest. Typically, this fact can be established by stating that USCIS has granted the alien a waiver of the 2-year home residency based on a petition from VHA Central Office. This letter should also describe the services to be performed by the alien, the alien’s qualifications to provide such services and the difficulties the facility has experienced in filling the job.
(d) A copy of the USCIS Notice of Approval of the 2-year home residency waiver.
(9) Once the facility’s immigrant petition and national interest waiver request are approved, the alien may file an application for an adjustment of status to permanent resident alien, along with an application for employment authorization. USCIS must grant the employment authorization, which relieves the alien of having to maintain any type of valid non-immigrant status prior to final adjudication of the adjustment of status application. The adjustment of status application is held in abeyance by USCIS until the alien provides documentation that said alien has worked in a medically underserved area and/or in VA facilities for a total of 5 years in a 6- year period. When the service requirements have been fulfilled, the alien becomes a permanent
resident alien.(10) It is important to note that the national interest waiver regulations do not require that
aliens fulfill their 5-year employment commitment with one employer. They may work for several employers in fulfilling the requirement, provided each employer is either a VA facility or in a medically underserved area. Thus, when a facility files an immigrant petition and national interest waiver on behalf of an alien, it does not obligate the alien to any particular length of employment, beyond the 3-year obligation resulting from being granted a waiver of the 2-year home residency requirement.
 
The 'fix' you mentioned was strictly limited to the filing of the I485. Initially, USCIS didn't allow you to file the I485 until you finished 3 years, now you can file but you can't take advantage of the benefits.

Don't believe any of the stuff the VA buerocrats tell you. Hire your own attorney, do the resarch. I believe that they are wrong (clueless) and I believe that if you follow their handbook you might be in for a rude awakening 5 years down the line. The problem with the tactic they describe is that it flies in the face of USCIS policies but that you are able to get away with it for about 6 years without them noticing it. When they notice it (at the point of adjudicating your I485), things will go very bad very fast.

Disclaimer:
Maybe USCIS changed the rules for NIW docs. I DO have a day job and such a change might have escaped my attention. But unless I find some information from the horses mouth (a USCIS memo, an AAO decision), I am very skeptical about this VA policy.

(warning: some VA administrators are outright evil. They will gladly give you false information such as 'oh, we can only file your NIW after x years, just so they can extend the service time they can squeeze out of you.)
 
Hadron,thanks once again.This however does not appear to be just a VA thing.I have done(and I am still doing) a lot of research on this subject as I
obviously do not want to do anything that will leave me in a bad situation at the end of 5 years.but just FYI this is what I found on The Law Office of Sheela Murthy, P.C. web site see below-the issue in question is in bold.As you know this Law came in to effect in 2000.Also perharps you could point me in the direction of where it says you must have maintained H1 b staus for 3 years as a condition for favourably adjudictaing an 1-485 application as I am unable to find it any where.I know this is not anybodies day job,but I believe sorting this issue out would benefit everyone on this forum.
p.s I cannot afford an attorney hence I have been able to obtain my J1 waiver,H1B and NIW approval by taking time from my Day job as a Neurologist and Psychiatrist.


"INS Issues NIW Regulations for Physicians
Posted Sep 16, 2000

Finally, INS has issued the regulations that will facilitate the adjudication of National Interest Waivers for physicians serving in medically underserved areas or at Department of Veterans Affairs facilities. This amendment of Section 203(b)(2) of the INA is authorized by the Nursing Relief for Disadvantaged Areas Act of 1999, Public Law 106-95, which allows physicians who are willing to practice full-time in an area designated by the Secretary of Health and Human Services (HHS) as having a shortage of health care professionals or in a facility operated by the Department of Veterans Affairs (VA) to obtain a waiver of the job offer requirement for the Green Card. These regulations will go into effect on October 6, 2000.

While cases filed before November 1, 1998 will only require 3 years of service in the underserved area, National Interest Waivers under the 1999 law will be approved for those physicians who have agreed to work full-time for an aggregate of 5 years in a clinical practice designated by HHS as a Primary Health Professional Shortage Area, Medically Underserved Area, or Mental Health Professional Shortage Area or at a VA facility. Currently, physicians in designated shortage areas are limited to the fields of family or general medicine, pediatrics, general internal medicine, obstetrics, gynecology, and psychiatry. The physician must provide as evidence that s/he will work in an HHS designated shortage area or a VA facility attestations from HHS, VA, a federal agency with knowledge of the physician’s qualifications and experience (such as the medical director of a U.S. military hospital, The Peace Corps, or the Department of State), or a State Public Health Department.

The physician MUST complete her/his 5 years of service within 6 years following the approval of the petition. Any time spent on J-1 nonimmigrant status will not count towards completion of the medical service requirement. Upon approval of the National Interest Waiver, the physician may immediately apply for adjustment of status and an Employment Authorization Document (EAD), which will relieve the physician from maintaining nonimmigrant status until the final adjudication of the adjustment of status application. The physician’s required period of service in the underserved area is counted only from the issuance of the EAD or from the point when the physician changed from J-1 status to H1B status (i.e. whichever occurred earlier).
Approval of the adjustment of status is contingent upon the physician completing her/his medical service. The physician must make an initial submission of evidence no later than 120 days after the second anniversary of the National Interest Waiver approval that documents at least 12 months of qualifying employment since it would be impossible to meet the 6 year deadline if 12 months have not yet been completed by then. At the end of the 5 years of aggregate service, the physician must again submit evidence that s/he has completed the required medical service. Submission of evidence such as individual tax returns and employer documentation of full-time medical service will result in final adjudication. Only then will the physician be scheduled for fingerprinting and be able to submit the required medical examination report.

Interestingly, the physician is not tied to the original underserved area. S/he may relocate to other underserved areas; however, a new petition documenting reasons for the proposed relocation must be submitted. The physician still only has a total of 6 years to complete the required service. If the underserved area in which the physician received approval of the National Interest Waiver loses its designation as an underserved area, the physician will not be required to relocate to another underserved area as the fundamental purpose of the statutory amendment will have been fulfilled by providing vital health care to the needy and allowing these physicians to become an integral element of the community.




© The Law Office of Sheela Murthy, P.C.











Posted Sep 16, 2000
 
this is also quoted form the uscis site listed below:the web link is below


At What Point in the Process May an Alien Physician Apply for Adjustment of Status?



Section 203(b)(2)(B)(ii)(III) of the Act allows any physician in receipt of an approved immigrant petition with an accompanying national interest waiver request based on full-time service in a shortage area to immediately apply for adjustment of status to that of lawful permanent resident. With a non-frivolous adjustment of status application pending, the alien physician is eligible to apply for an Employment Authorization Document (EAD) pursuant to 8 CFR 274a.12(c)(9). (Physicians with approved immigrant petitions and national interest waivers based on service in a shortage area should file the application for adjustment of status and the application for an EAD simultaneously.) This relieves the physician of having to maintain any type of valid nonimmigrant status prior to the final adjudication of the adjustment of status application. That is to say, the alien physician, under section 245(c)(7) of the Act, must have been in a lawful nonimmigrant status when the alien physician files the adjustment application, but need not remain in lawful nonimmigrant status during the entire period of medical and

(d) Are alien physicians eligible for Form I-766, Employment Authorization Document?
(1) Once the Service has approved an alien physician's Form I-140 with a national interest waiver based upon full-time clinical practice in an underserved waiver based upon full-time clinical practice in an underserved area or at a Veterans Affairs facility, the alien physician should apply for adjustment of status to that of lawful permanent resident on Form I-485, accompanied by an application for an Employment Authorization Document (EAD), Form I-765, as specified in § 274a.12(c)(9) of this chapter.

(2) Since section 203(b)(2)(B)(ii) of the Act requires the alien physician to complete the required employment before the Service can approve the alien physician's adjustment application, an alien physician who was in lawful nonimmigrant status when he or she filed the adjustment application is not required to maintain a nonimmigrant status while the adjustment application remains pending. Even if the alien physician's nonimmigrant status expires, the alien physician shall not be considered to be unlawfully present, so long as the alien physician is practicing medicine in accordance with § 204.5(k)(4)(iii) of this chapter.





http://uscis.gov/lpbin/lpext.dll/inserts/fr/fr-63605/fr-66962/fr-67515?f=templates&fn=document-frame.htm
 
From the adjudicators field manual:

http://uscis.gov/lpbin/lpext.dll/in...-redacted-1?f=templates&fn=document-frame.htm


(b) Terms and Conditions of the Waiver. The restrictions on the grant of the waiver to foreign medical graduates under section 212(e) of the Act, as detailed in section 214(l) of the Act, are as follows:

• The foreign medical graduate must submit a “no objection” statement from the government of his or her country of nationality or last residence abroad (home country) unless the foreign medical graduate has no contractual obligation to return to his or her home country upon completion of the graduate medical research or training.

• Where the request is by an interested State agency, the grant of the waiver must not cause the number of waivers allotted for that State for that fiscal year to exceed 20. Note: There is no limit on the number of waivers that may be granted to foreign medical graduates under the Federal program.

• The foreign medical graduate must agree to practice medicine at the health care facility named in the waiver application for at least three years, and only in HHS- designated shortage areas. There are two exceptions to this requirement:

– If the United States Department of Veteran's Affairs (VA) requests the waiver, the foreign medical graduate must practice medicine with the VA for at least three years, but does not need to do so in an HHS-designated shortage area.

– If an interested Federal agency requests the waiver so that the agency can employ the foreign medical graduate full-time in medical research or training, the foreign medical graduate may fulfill his or her obligation by working for the agency for at least three years in that capacity, rather than by practicing medicine in an HHS-designated shortage area.

• The foreign medical graduate must demonstrate a bona fide offer of full-time employment at a health care facility or organization, and such employment must have been determined to have been in the public interest.

• The foreign medical graduate must agree to fulfill the three-year obligation as an H- 1B nonimmigrant.

• The foreign medical graduate must agree to start employment within 90 days of receipt of waiver approval.

• A foreign medical graduate who does not fulfill the three-year obligation for the health care facility or organization named in the waiver application becomes subject once again to the two-year foreign residence requirement, unless USCIS finds that extenuating circumstances exist, such as closure of the facility or hardship to the alien that would justify a shorter period of employment. The foreign medical graduate will, however, be required to serve the balance of the three-year period with another qualifying health care facility or organization.

• A foreign medical graduate who obtains a waiver under section 214(l) of the Act may not obtain permanent residence, whether by an immigrant visa or by adjustment of status, until the foreign medical graduate has satisfied the service obligation that the foreign medical graduate agreed to accept.

Note: To prevent claims that a foreign medical graduate was unaware of the obligations that accompany a waiver under section 214(l) of the Act, an addendum is affixed to the I-797 approval notice which specifies the terms and conditions that accompany the waiver. The addendum identifies whether a State Department of Public Health or an Interested U.S. Government Agency made the request for a waiver, while the applicable public law number is listed on the Form I-797 itself.

(c) Effective Date. The IIRIRA amendments to section 212(e) of the Act became effective on September 30, 1996. The reasoning in Matter of Soriano, 21 I&N Dec. 516 (BIA 1996; AG 1997), compels USCIS to adjudicate an application for the waiver according to the law in effect at the time of adjudication. Therefore, foreign medical graduates who were granted a waiver of the two-year foreign residence requirement by the Service or USCIS on or after September 30, 1996, are subject to the terms and conditions of section 214(l) of the Act, regardless of the date the waiver request was initiated by the interested Federal agency or State Department of Public Health. These foreign medical graduates may not apply for any other change of nonimmigrant status or for status as a lawful permanent resident (including the Diversity Visa (DV) lottery program), unless the terms and conditions of section 214(l) of the Act have been met.

(d) Ability to Change Status From J-1 to H-1B. Section 214(l)(2)(A) of the Act, as amended by section 622 of IIRIRA, allows a change of status from J-1 to H-1B for those foreign medical graduates who were granted waivers of the 2-year foreign requirement under both the state and federal programs. The foreign medical graduate, however, must be otherwise eligible to apply for a change of nonimmigrant status under section 248 of the Act. This includes the requirement of timely filing of the change of status application. However, the statutory ineligibility for change of status under section 248 continues to apply to foreign medical graduates who obtain a section212(e) waiver based on exceptional hardship or persecution (i.e. under section212(e) itself, rather than section214(l)).

(e) Foreign Medical Graduates Who Again Become Subject to the Two-Year Foreign Residence Requirement. As noted above, a foreign medical graduate who obtains a waiver under section214(l) may not obtain permanent residence until the foreign medical graduate has completed his or her service obligation. A waiver under section214(l), moreover, is void if the foreign medical graduate does not meet this requirement. Under section 214(l)(3)(A) of the Act, a foreign medical graduate who does not practice medicine for three years for the health care facility or organization named in the waiver application again becomes subject to the two-year foreign residence requirement. The alien may, however, request that the early termination of employment with the named health care facility be excused based on “extenuating circumstances,” which can include hardship or closure of the health care facility. See section 214(l)(1)(c)(ii) if the Act. As part of the request, the alien must submit an employment contract with another health care facility in an HHS-designated shortage area for the balance of the 3 years. If the interested Federal agency was the VA, the alien must submit an employment contract with another VA facility for the balance of the three years. 8 CFR 212.7(c)(9)(iv) states that under no circumstances will a foreign medical graduate be eligible to apply for change of status to another nonimmigrant category, for an immigrant visa or for status as a lawful permanent resident prior to completing the requisite 3-year period of employment for a health care facility located in an HHS-designated shortage area.

Under section 214(l)(3)(B) of the Act, the foreign medical graduate also once again becomes subject to the two-year foreign residence requirement if, at any time during the three-year period following approval of the waiver, his or her employment ceases to benefit the public interest.
 
Last edited by a moderator:
Here is a memo from Yates regarding this matter. It states that:

'The H-1B physician must fulfill his or her three-year commitment with the H-1B petitioner as required by section 214(l) of the Act. The only exception to this requirement is the provision for obtaining permission to complete the period of service with a different H-1B employer, as outlined in section 214(l) of the Act and § 212.7(c)(9)(v) of the regulations.

After fulfilling the H-1B service requirement, the alien physician may continue his or her employment with the H-1B petitioner in order to satisfy the remaining two years of the NIW five-year service requirement, or may seek a different employer provided the place of full-time employment is with a Department of Veterans Affairs facility or in a Department of Health and Human Services designated medically underserved area.'

http://uscis.gov/graphics/lawsregs/handbook/polgui214.pdf
 
Going back to the question from the OP:

- You have to complete 3 years with the original employer except in cases where you are forced to change jobs due to extenuating circumstances.

- Leaving your job to run your own practice on EAD will cause you to violate your status.

- Whether you can use your EAD for a moonlighting gig. I don't think you can, bc the moment you use it your H1b status is history. You will have to work your primary job on EAD as well, which conflicts with the wording of the Yates memo I quoted above.


AGAIN:
I am not an attorney. The requirement to do the 3 years on H1b is what I have read everywhere so far. It is entirely possible that this is wrong, but I don't think it is. One has to be very careful when reading the law or even cfrs. In the real world, it is the memos and field manuals that govern whether you get your GC or not.
 
Last edited by a moderator:
You must log in or register to reply here.
Top