EB1-OR, EAD use before 140 approval.

E

eb2007

Registered Users (C)
I'm in a bit of fix now. My current visa (J-1) will expire in Aug 2008 and because of heavy filing last year it appears that it would take beyond Aug before my case can be adjudicated. I know I could use EAD after my current visa expires but if 140 is denied I know I'll be out of status immediately. My question is whether USCIS will give some time to sell my stuff?? or I've to leave immediately.
Please help me with issue??
Thanks
RD: Nov 7,2007
LUD 12/18/07
 
Geez - I'm in the same situation (AOS, I-140 not approved yet, no underlying status, J-1 expired last year) and I just bought a house... sometimes you just have to take risks in life....

No, USCIS will not give you time if they deny your I-485...
 
Hi jk0274...
I'm really impressed with your confidence. What do you recommend should i switch to H1 around august? But in that case I'll have to spend 2500 $ for filing with premium processing (non-profit)? Is it sensible for my wife to use her EAD after my J1 expiration if I switch to H1? If 140 is denied, can she switch to H4 within US or else she has to get it stamped from my country??
Please help....I'm a bit confused.
Thanks
 
As long you work for a University and are not subject to the H1 quota you should be ok with switching to EAD right now. If the I-485 gets denied you just apply for the H1 and pick up a visa stamp to get back into status. You would be unable to work for 2-4 weeks but thats about it. There is no need to sell your stuff or your house. If you are under the quota, you could at least file for an appeal (takes almost a year) and try to secure an H1 while the appeal is pending.
 
You mean to say that if I'm using EAD and even after 140 denial I can stay in US and than can change to H1 within 2-4 weeks? Don't you think for those 2-4 weeks I'd be out of status? Is is legal to stay in US during that time? Or I've to go back to my country and then get H1 stamped?? Yes I work in University (H1 not under quota)
Please suggest..
 
hi,

My lawyer mentioned that even if your I-140 , I-485 get rejected... you can still use your EAD card for employment till its expiry date. In the meanwhile before the EAD expiry date you need to either file for H1 or EB1.

Please comment. Does anybody else know about this.
 
mougc said:
hi,

My lawyer mentioned that even if your I-140 , I-485 get rejected... you can still use your EAD card for employment till its expiry date.
Click to expand...

Absolutely not true. If your I-485 is denied, your EAD is invalid. Not only that, you begin to immediately accrue days of unlawful presence unless you have an underlying status.

But before the I-485 there is the I-140. You will generally get an RFE or a "motion of intent to deny" if there is a problem, so you usually will have some advanced notice. Also, there may be a (very small) window between I-140 denial and I-485 denial, and it's the I-485 that counts as far as EAD is concerned.

In my case, I just got sick of living in the US under "what if" conditions. I am not too confident about my case, but I do want to live. I don't work for a unversity and I actually don't want to be sponsored in the US by anybody (was sponsored for 16 years, that's enough). If my stuff gets denied, the planet is a big place, and the US, while having some advantages, is certainly not paradise.
 
You won't be out of status because you get advanced warning of the denial (notice of intent to deny). That gives you enough time to take care of the H1 petition. You can try filing for change of status to H1 at the same time (both premium processing), but you might end up having to get an H1 stamp because they deny you COS request.
 
eb2007 said:
Hi jk0274...
I'm really impressed with your confidence. What do you recommend should i switch to H1 around august? But in that case I'll have to spend 2500 $ for filing with premium processing (non-profit)? Is it sensible for my wife to use her EAD after my J1 expiration if I switch to H1? If 140 is denied, can she switch to H4 within US or else she has to get it stamped from my country??
Please help....I'm a bit confused.
Thanks
Click to expand...

If your wife has a category C-5 EAD, then she can no longer use it the minute you cease to be under J-1 status, even if it's still valid. If she has a C-9 category, she can continue to work while I-485 is pending. You can switch to H visa if you like, but if your I-485 is denied, your wife may have to immediately go abroad, get a H-4 visa, and return on that but lose her ability to work. I am not familiar with the process of gaining H-4 status in the US in a case such as yours, but there may be a procedure even though it's easiest to just go abroad and return with a new stamp. The employer may pay the H-1B fees, but that's something you arrange with them.
 
Thank you all for discussing this topic. Form the discussion, I think that me and my wife should use EAD before jumping to H1. I concurrently filed in EB1-OR category, so I believe there will be simultaneous processing of both 140 and 485. Obvioulsy 485 can't be approved unless 140 is approved, so with concurrent filing, if 140 is denied then is there some time gap between 140 and 485 denial? If yes, when one should stop using EAD and he is out of status in such case- after 140 denial or 485 denial?? I absolutely have no problem in packing my bags (permanently) to my country but I wish that I should know it in advance.
Thanks once again..
 
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