EAD to H1B

[mvermani]

My 6 years limit on H1 is expiring in June 2006 and I have current H1 till June 2008(based on approved 140). I have EAD from my wife's 485. Her 140 is still not approved. I want to change my employer and start working using EAD. I have following concerns regarding the use of EAD

1. If my wife's 140 get rejected, then my EAD is also denied. In that scenario will I be able to come back on H1?
• If yes, will that be considered fresh H1 or H1 transfer and will be counted against quota?
• Or in that case I’ll be on H4

I am trying to decide if it is better to stay on my current H1 or if it is okay to switch to EAD (approved from my wife’s 485)?
What are the main issues that may come up when her 140 or 485 are rejected or in any other case?

 

[ginnu]

My 6 years limit on H1 is expiring in June 2006 and I have current H1 till June 2008(based on approved 140). I have EAD from my wife's 485. Her 140 is still not approved. I want to change my employer and start working using EAD. I have following concerns regarding the use of EAD

1. If my wife's 140 get rejected, then my EAD is also denied. In that scenario will I be able to come back on H1?
------------- if wife I-140 gets rejected then your EAD, AP I-485 all get denied. once you use EAD you cant be on H1
• If yes, will that be considered fresh H1 or H1 transfer and will be counted against quota?
---------------- why not to join new employer with H1 transfer and remain on H1
• Or in that case I’ll be on H4
------------- you can be on H4 if you file H1 to H4 COS with USCIS Before your I-94 gets expired.
I am trying to decide if it is better to stay on my current H1 or if it is okay to switch to EAD (approved from my wife’s 485)?
----------------- stay on H1
What are the main issues that may come up when her 140 or 485 are rejected or in any other case?

 

[mvermani]

Thanks for the quick reply Ginnu.

1. From my understanding if I do H1 transfer (assuming I'll get extension till june 2008 based on my current H1) and my previous employer revokes my 140 then my H1 transfer is not valid. Is this understanding correct or is there a way around this?

2. In the case when my new employer files for my perm, can I switch back to H1 (from EAD) once the I-140 is approved? Is it safe to take this approach?

3. In case, I go with the 2nd approach and join my new employer (as mentioned above). What happens in the scenario when my spouse's i-140 or 485 gets rejected before my 140 approval? What will be my options?

 

[ginnu]

Thanks for the quick reply Ginnu.

1. From my understanding if I do H1 transfer (assuming I'll get extension till june 2008 based on my current H1) and my previous employer revokes my 140 then my H1 transfer is not valid. Is this understanding correct or is there a way around this?
-------------- if you file H1 extension and got H1 extension and AFTER H1 extension employer revokes your I-140 then H1 is valid till validity date and no more H1 extension after that as you will not have base for your H1 extension. I dont know when YOUR I-140 was filed or approved. you may be eligible for 3 year H1 extension .talk to your lawyer and provide all the details of your case
2. In the case when my new employer files for my perm, can I switch back to H1 (from EAD) once the I-140 is approved? Is it safe to take this approach?
---------- are you thinking about joining new employer and that employer will file PERM for you, better be on H1 and dont use EAD. FYI if your past employer filed I-140 gets approved then you can retain old PD, talk to your lawyer
3. In case, I go with the 2nd approach and join my new employer (as mentioned above).
What happens in the scenario when my spouse's i-140 or 485 gets rejected before my 140 approval? What will be my options?
--------- your EAD,AP is based on your pending dervative I-485 and base of that I-485 is your wife I-140. if your wife I-140 gets rejected then I-485, EAD AP for both of you will be denied.
*** remain on H1

 

[mvermani]

Ginnu,

As per my lawyer the H1 transfer will not be valid if my previous employer (A) revokes my 140. My 140 was based on EB3 substituted labor with the priority date of June 2003. New employer (B) is ready to file new GC through perm but I'm not sure if H1 transfer is possible or not?

 

[ginnu]

Ginnu,

As per my lawyer the H1 transfer will not be valid if my previous employer (A) revokes my 140.
------------- wrong info by lawyer. just an example if your H1 extension is filed on 1 june and your I-140 is not revoked and USCIS officer looks at your H1 papers to approve H1 on August 1 and at that time your I-140 is not revoked and USCIS approves your H1 that H1 extension is Valid even if the employer revokes I-140 on August 2 . go to good lawyer.( if I have fear that past employer will revoke the I-140 in future I will file H1 ext with premium processing fees so that I get H1 approved in 15-20 days)

My 140 was based on EB3 substituted labor with the priority date of June 2003.
--------------- if your I-140 is approved and you have I-140 filing reciept copy or I-140 approval notice copy why you did not file your I-485??? I-140 approved and I-485 pending more than 180 days you could be eligible for AC21
New employer (B) is ready to file new GC through perm but I'm not sure if H1 transfer is possible or not?
----------- H1 trasfer is possible if past employer has NOT revoked your I-140. FYI if your I-140 is approved one can get the Early PD when next I-140 or I-485 is filed. you need a good lawyer to do that who can draft a cover letter and let the USCIS officer know about the rule to capture earier PD. In your situation you need good lawyer and better remain on H1.

*** you have H1 approved till 2008, i dont see any problem for H1 transfer. I hope you talked to new company lawyer and told that you have EAD the company may not want to spend on H1. if you talked to your present company lawyer he represent your present company.

 

[dyingforgc]

Here is what you will need to do to convert back to H1 after using EAD.

-If your previous employer doesn't cancel your h1-b, then you can always go back to h1-b status BUT in order to get back on valid h1-b status; you will have to go out of US and come back on H1-B status. If you already have h1-b stamp then no worries, just go out of country and come back showing h1-b at POE.
-EVEN if your h1-b is not stamped; you can go to Canada and use auto-revalidation to get back on h1-b status after using EAD. This is completely legal and safe.

 

[themember]

Here is what you will need to do to convert back to H1 after using EAD.

-If your previous employer doesn't cancel your h1-b, then you can always go back to h1-b status BUT in order to get back on valid h1-b status; you will have to go out of US and come back on H1-B status. If you already have h1-b stamp then no worries, just go out of country and come back showing h1-b at POE.
-EVEN if your h1-b is not stamped; you can go to Canada and use auto-revalidation to get back on h1-b status after using EAD. This is completely legal and safe.

Hi dyingforgc

Could you please post a link to a website where you found this info that this scenario is legal and safe. What I mean is that is it OK to go from H1b to EAd and back to H1b by travelling and coming back to USA.

Thanks.