EAD vs H1

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deepa3

Registered Users (C)
Hi Gurus,

Please give me your suggestions.

My 6th yr of H1 is expiring soon. I have EADand AP not used. This expires in few months.

485 filed in 10/03. Labor was filed in Jan 2002.

My question is should I renew H1 or EAD or both ? Which is advantageous,if I am laid off in the future or if 485 is denied ?

Thanks in advance.
 
deepa3,

Renew your EAD and extend your H1B. Are you a concurrent filer? What is your receipt number?

If you are laid off in the future and if you have a valid EAD, you can use AC 21 and find yourself a new job. INS can only extend your H1 visa for one year, since you used up all your 6 years. By extending your H1 visa, if INS were to deny your I-485 you will not be out of status but will have a valid H1 B status.

BTW, when did you file your I-1485? Is it March 10, of 2003. Let us know.
 
deepa
you may want to check with a lawyer. I dont think you get 7th year H1 if you are on 485. Also conversion from immigrant petition to non-immigrant H1 will require you to go out of the country.

So your only option is AC21.
 
The first link doesnt seem to work. It looks like the option exists to extend H1. That brings up the question if I can go to H1 status from EAD ? Under what conditions do I have to go to H1 ? Can I go out of the country and come back with a H1 from a new company (I mean in case 485 gets into trouble)
 
Thanks for all the suggestions.

krishnakt,

I am not a concurrent filer.

krishna02,

I did talk to my lawyer. He recommends extending only the EAD.
One of my friends is in a similar situation. His lawyer has recommended he extend both EAD and H1. Another of my friend's lawyer wanted him to extend only H1.

????? I still do not know what to do.

If I extend only EAD:

what happens if I am laid off? (I am still working for the firm that sponsored LC in Jan 2002)
what happens if 485 is rejected?


If I extend only H1:

what happens if I am laid off?
what happens if 485 is rejected


If I extend both H1 and EAD:

what happens if I am laid off?
what happens if 485 is rejected


Thanks
 
Originally posted by deepa3
Thanks for all the suggestions.

krishnakt,

I am not a concurrent filer.

krishna02,

I did talk to my lawyer. He recommends extending only the EAD.
One of my friends is in a similar situation. His lawyer has recommended he extend both EAD and H1. Another of my friend's lawyer wanted him to extend only H1.

????? I still do not know what to do.

If I extend only EAD:

what happens if I am laid off? (I am still working for the firm that sponsored LC in Jan 2002)
find similar job using Ac21 with help of EAD
what happens if 485 is rejected?
before rejecting I-485 ins usually send letter for intend to denied just start H1 premium process to get new h1 and get h1 before I-485 denies, so you will be in status and won't loose legal status


If I extend only H1:

what happens if I am laid off?
You will be out of status
what happens if 485 is rejected
You will be in status but you have to start green card process from scratch

If I extend both H1 and EAD:

what happens if I am laid off?
No problem, find similar job using Ac21 with help of EAD
what happens if 485 is rejected
if you never used EAD and have EAD card then it doesn't effect your status, only thing you need to start gc process again
if you used ead or ap for some purpose then i think you need to reneter to usa with new h1 visa stamp using your I-129 (i am not sure, but check with your lawyer )


Thanks

Best bet would be to get both h1 extention and ead for the safest bet, but obviously it cost more money.
So it's your choice to choose between money and safe thing

it usually vary by person to person, (same like if you get higher deductable insuarance it cost less as oppose to lower deductable insurance cost more, choice is yours.
Click to expand...
 
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Read the:
http://www.immigrationlinks.com/news/news301.htm

http://www.murthy.com/UDnewins.html


I did talk to my lawyer. He recommends extending only the EAD.
One of my friends is in a similar situation. His lawyer has recommended he extend both EAD and H1. Another of my friend's lawyer wanted him to extend only H1.
****Better is to extend EAD and H1 if you are still maintaining H1 status
????? I still do not know what to do.

If I extend only EAD:

what happens if I am laid off? (I am still working for the firm that sponsored LC in Jan 2002)
find similar job using Ac21 with help of EAD
**** If you are laid off and have EAD you can join new employer.

what happens if 485 is rejected?
before rejecting I-485 ins usually send letter for intend to denied just start H1 premium process to get new h1 and get h1 before I-485 denies, so you will be in status and won't loose legal status
*** If you are using EAD and your I485 is denied you have to leave US, but if you are still maintaining H1 when your I-485 is denied then you can stay till you have H1

If I extend only H1:

what happens if I am laid off?
You will be out of status
**** if you maintain H1 and laid off you can join other company by H1 transfer
what happens if 485 is rejected
You will be in status but you have to start green card process from scratch
**** You will be on H1B status and depend on the reason of rejections.
If I extend both H1 and EAD:

what happens if I am laid off?
No problem, find similar job using Ac21 with help of EAD
**** Better try to find new job by H1 transfer if not possible then use EAD
what happens if 485 is rejected
if you never used EAD and have EAD card then it doesn't effect your status, only thing you need to start gc process again
if you used ead or ap for some purpose then i think you need to reneter to usa with new h1 visa stamp using your I-129 (i am not sure, but check with your lawyer )


Thanks

Best bet would be to get both h1 extention and ead for the safest bet, but obviously it cost more money.
So it's your choice to choose between money and safe thing

it usually vary by person to person, (same like if you get higher deductable insuarance it cost less as oppose to lower deductable insurance cost more, choice is yours.
 
From these postings, its not clear what is the problem in just getting into EAD. I am told that the moment I get EAD, my H1 is invalid since it is non-immigrant status. So what is the solution if my 6 yrs is completed, I am on EAD and 485 gets into trouble ? It looks like there seems to be an alternative of starting the gc process again ? if so, am i in status or do I have to go out of the country and convert into a new H1 after a year ? Or can I be in the country and wait for the new labour 140 to get cleared (almost 2 years process)

I dont see any advantage in going for extention of H1 since it can he applied anytime (after 485 rejection). and is valid from the RD onwards.
 
I am told that the moment I get EAD, my H1 is invalid since it is non-immigrant status.
--- Who told you that? By just getting EAD your H1 is NOT invalidated but if you USE EAD then your status is not H1, having EAD and using EAD have different interpretations
So what is the solution if my 6 yrs is completed, I am on EAD and 485 get into trouble?
----- If not marinating H1 status and working on EAD and I-485 denied you have to leave US immediately. Many could not complete 6 years in US, many had to go. you are lucky that you are still working. even if I-485 denied why worries so much? Go home happily. why are you worried about denial of I-485 so much, did you see any problems? What are the problems with your I-485? can you list them? Did you commit any crime? Did you fear that your employer would revoke I-140? Or you are unnecessary getting hallucinations about future; if that is the problem then there are different doctors for that.
It looks like there seems to be an alternative of starting the gc process again ? if so, am I in status or do I have to go out of the country and convert into a new H1 after a year ? Or can I be in the country and wait for the new labour 140 to get cleared (almost 2 years process)
--- If I-485 denied then I see a problem for getting H1B even after staying 1 year out of US, Please confirm with the good immigration lawyer, as many anta immigration groups due to bad economy are shouting against H1B visa no body knows what will be the position after 1-2 years for H1B visa and what decision congress is going to take in the future.
I don’t see any advantage in going for extension of H1 since it can he applied anytime (after 485 rejection). and is valid from the RD onwards.
***Who told you that after I-485 rejection one could apply for H1 extension? Is this a new law? Where have you read this? According to you all those who got I-485 rejetected/denied can get H1 extension? I dont have any info about such law, if you know please let me know I need to update my knowledge
Read the below Memo for your concerns

http://www.shusterman.com/hl-99regs.html
 
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After reading all the stuff, am I correct in saying that after 6 yrs of H1,

1) if one is laid off:

if he had EAD only- could get another job
if he had H1 only- could be a potential problem. If there is adequate time could switch to EAD or get a new employer and new H1


2) if 485 is rejected:

if he had EAD only: leave
if he had H1 only: IS THE H1 INVALID THE MOMENT 485 IS REJECTED OR VALID UNTIL THE H1 PERIOD.


Thanks.
 
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After a lontime, I was able to talk to my attorney.

About extending the H1, he thinks it is not a bad idea, but is not a hard recommendation. This is only because of the possible delays with EAD. This may not be problem now with efiling.

Thank you all for all the input.
 
Hi guys and girls,
I had one question about EAD. Please clarify. . .
I am working for the same company that applied for my gc. My h1 expired in March 2003. I still had 6 months left in the six year period, but I decided to go for EAD. So I got my EAD in Jan 2003. I am still continuing with the same employer. And the questions are:
1. Am I working on EAD or H1?
2. Do I need to fill out any forms with the employer, when my h1 expired, to make it official that I started working on EAD.(If at all I am working on EAD)
3. I heard that the employer has not to pay employee taxes if we get into EAD. He has to pay only when we are on H1. It doesn't sound true. But is it true?
Thanks,
gcgcgcgc
 
Originally posted by gcgcgcgc
Hi guys and girls,
I had one question about EAD. Please clarify. . .
I am working for the same company that applied for my gc. My h1 expired in March 2003. I still had 6 months left in the six year period, but I decided to go for EAD. So I got my EAD in Jan 2003. I am still continuing with the same employer. And the questions are:
1. Am I working on EAD or H1?
EAD, as you mention that your h1 expired in march 2003, so it doesn't extend automatically if you have some time left in 6 year
2. Do I need to fill out any forms with the employer, when my h1 expired, to make it official that I started working on EAD.(If at all I am working on EAD)
Yes, I-9 form, it's stay with employer, so as long as you are with same employee, just walk to hr and fill out new I-9 form (similar to w4 form)
3. I heard that the employer has not to pay employee taxes if we get into EAD. He has to pay only when we are on H1. It doesn't sound true. But is it true?
No idea, I don't think there is any employee taxes seperate for h1, only thing I can think you can consider as employee tax for hiring h1 is the training (it's has different name) fee 1000/ 1500 $ when your employer filing for your h1 application and it's one time fee
Thanks,
gcgcgcgc
Click to expand...
 
Thanks for the quick response.
One more doubts arised from your explanation,
1. I filled out I-9 form when I joined the company with H1. Do I need to fill that again? My employer is not giving good info. And I don't know how much he knows.
Thanks,
Jitendra
 
Ginnu:

Check your links. If you changed employer your H1 becomes invalid. You have to have a EAD to change employer and moreover, as against other cases, I dont think you can transfer H1 after getting EAD to move to a new employer (in case 485 gets into trouble) as against some other postings here. Thats why I think extending or being in H1 after EAD is a waste.

I am concerned about 485 mainly because the laws of AC21 is not clear and I had to change employer after about 100 days. I also did not get paid for 4 months which will reflect in my W2 if asked. Of course my salary was still about 3 times the poverty limit but less than in the labour. Otherwise no criminal record and no other problems.
 
gc:

I dont think your employer is going to do anything with the new I9 and mine didnt either. I9 is just to inform IRS that they are going to start withholding taxes on your behalf and records your ssn. Your company and so should you, keep these for your records in case there is an audit or you are asked to prove your status before the gc is approved
 
Originally posted by Krishna02
gc:

I dont think your employer is going to do anything with the new I9 and mine didnt either. I9 is just to inform IRS that they are going to start withholding taxes on your behalf and records your ssn. Your company and so should you, keep these for your records in case there is an audit or you are asked to prove your status before the gc is approved
Click to expand...

Wrong, I-9 has nothing to do with taxes withholding or IRS. You are probably thinking about W4. I-9, the Employment Eligibility Verification Form is a INS/BCIS requirement and all employees are required to fill out I-9, including US citizens.
If H1 expires and you use EAD, you have a new employment authorization and you are required by law to update I-9 to reflect the new authorization.
 
Krishna02

If you changed employer your H1 becomes invalid.
--- ---But if you change employer by H1 transfer then you join the new employer by H1 transfer you are on H1 status (if your H1 transfer is approved). If you changed or joined new job with new employer with EAD you are not on H1 status as your new employer has not filed for your H1 transfer.

You have to have an EAD to change employer
--- You can change the employer with H1 transfer also.
and moreover, as against other cases, I don’t think you can transfer H1 after getting EAD to move to a new employer (in case 485 gets into trouble) as against some other postings here. That’s why I think extending or being in H1 after EAD is a waste.
----- I am not going to comment you can have your opinion or seek legal advise form your attorney
I am concerned about 485 mainly because the laws of AC21 are not clear and I had to change employer after about 100 days.
-- --You are correct ,the Final AC21 regulations are not still published according to v.good immigrant lawyer AC21 regulations may be published in September 2003 with 60 days comment period
I also did not get paid for 4 months which will reflect in my W2 if asked.
----- That may be or may be not a issue as you don’t know when your I-485 gets approved.
Of course my salary was still about 3 times the poverty limit but less than in the labor
------ According to Ac21 law it does not matter but 4-5 months back BCIS H.Q officials said that salary should be according to LC (that was reported by Sheela Murthy) no body knows what will be in final regulations. As you joined your new employer after 100 days of filing I-485, I hope your I-485 has crossed 180 days, if your past employer does not revoke the underlying I-140, you may get I-485 approved. 2-3 months back NSC and CSC has also denied few I-485 cases where I-485 was pending more that 180 days but employer/BCIS revoked I-140 after 180 days (according to Sheela Murthy you can find the info in threads or on her site)
** If I am in your position working with the employer other than who sponsored my GC, on EAD, If I have not consumed my 6 years of H1, then I will request my new employer to file new H1 for me( even if i have to pay from my pocket) and once I get new H1 approval in hand I will go out of US, get new H1 visa stamped and will enter on H1 status and will get I-94 with H1 status and will work on H1 and maintain H1 status till I get I-485 approved or denied, because if I-485 is denied I will have H1 status to work and stay in US and may be having option to extend H1 for 7th year( need good layer to do it if still I-485 is pending)
I am leaving this thread follow the advise of your lawyer.
 
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