From EAD/AP back to H1-B

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CoolDesiDude

Registered Users (C)
This is one of the common questions even i asked this and there is some confusion in the legal community regarding this.

Yesterday i consulted with Attorney Sheela Murthy's office and i got this reply...

'When one uses EAD or for that matter Advance Parole his existing H1-B will not become invalid but it becomes what i like to call "Dormant" ...If one wishes to go back to H1-B he has to do something to reactivate it - like applying for a extension or going out of the country and getting stamped - There is nothing wrong/illegal in this provided that he still works for the same employer who sponsored his H1-B/GC ' .

I felt relieved and wanted the forum to know ...

Hope this helps many confused souls :)
 
I have done this Before

Hi have PAtience,
Don;'t Confuse it by saying Vice Versa. I have done samething few months ago. I had h1b & EAD from my GC sponsering employer.
I used EAD to work for another employer For just 1month.

Then I joined back my GC Sponsering company & Have been using Same H1B.

-sank
 
Hi Patience,
I did not go out of US. H1B is still valid as long as u were on continous pay roll with GC sponsering Employer before u join another company. you can use h1b again once if you want join back same GC Sponsering company.


Under this Case One should not Use h1b :

If you have used EAD to join other company, Suppose if you want to go out of US, one should use AP intead of h1b. During your entry into US, please provide Advance parole instead of H1B.

-sank
 
Re: I have done this Before

Originally posted by sank
Hi have PAtience,
Don;'t Confuse it by saying Vice Versa. I have done samething few months ago. I had h1b & EAD from my GC sponsering employer.
I used EAD to work for another employer For just 1month.

Then I joined back my GC Sponsering company & Have been using Same H1B.

-sank
Click to expand...

Sank

Whether you use EAD for one day or year does not matter. Once you use the EAD, you used it. Keep your EAD always valid. IF CIS may ask for your W2. To get back to H1 you need to travel out side and re-enter using new H1.

Just take care. Status will not change based upon your assumptions
 
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Hi Tammy2,
Thx for your Idea.

>>>> Keep your EAD always valid. IF CIS may ask for your W2. what is CIS?

what u mean "keep your EAD always Valid".


Let me write my complete story. I was working with my GC Sponsering employer thro H1b. Then i used EAD(Old EAD- before EAD Renewal) for 1month with another employer. Again I joined GC sponsering employer with H1B& got the pay check from them.

Here is my Ques: My old EAD is not valid as i used h1b Again.???

After few weeks I joined another company with new EAD( which is Renewed EAD-new One).


Thanks
sank
 
Once you use the EAD getting back on H1 is not possible unless you leave this country and come back with new I-94. How many days did you work without EAD presuming that you are H1? Whole that period may be considered as unauthorized work. If it is less then six months it is better.

What i mean to say if you get an RFE for W2 or pay slips then there is chance that they may come to know. Per what i heard on the portal they view working without authorization as serious issue.
CIS means USCIS or BCIS (old INS).

I would suggest you talk to some attorney.
 
Hi Tammy2,
Thanks for your reply.
I worked for 7 months on H1B after i used EAD.
I will look into this matter.

Thanks
sank
 
Hi Tammy2,
I worked with H1B from Beginning of Aug 2003 to Jan 2004. In jan 2004 i did the 7th year h1B Extension., bcoz in Jan 2004 I am completing 6yrs on h1B.

Thx
sank
 
I agree with Tammy2. You have H1B. You quit job. You automatically loose your H1 status (technically, even if you quit for 1 day). You start working on EAD. You are invoking your parolee status at that time. If you want to go back to your original employer, you gotta use EAD. You cannot use H1 as it has already become invalid when you quit your original job.

Actually, if you were working 2 jobs, one on H1 and one on EAD, you can always leave country and come back on H1 and keep working for the original sponsor.

I believe in your case, your sponsor should have again reapplied for H1 as you had quit working for him (as opposed to previous situation).

As Tammy2 says, keep valid EAD at all times. This will insure that you don't work unauthorized if USCIS claims the above scenario.
 
Hi Jllag1

Thanks for Input.
Let me write in detail.

Since i filed i485 in Oct 2002, I have had EAD & h1B.
I was in bench for 6 months due to poor economy. After 180days In may 2003, I have used EAD to work with another employer for just 1 month.

Then i got project through GC Sponsering Company on Aug 2003. That time they did not ask for my EAD(EAD valid until Feb 2004) to File i 9 form.
They had my h1B. In jan 2004, That h1b got Expired & filed 7th yr Extension. I worked for my GC Sponsering Company until Jan 2004.

Meanwhile I applied for EAD Renewal On my Own & got in Dec 2003. In Feb 2004, i switched to new Employer using renewd EAD.

My Question During that period Aug 2003 to Jan 2004, my company did not use my EAD to file i9 form. They used my h1b.
What are the problem that Could arise between Aug 2003 to jan 2004????. Is it an Unautorized work Period.

Today I spoke with my attorney abt this. He said it is not problem. Anyway I will check with other attorney too.

During my work period, My EADs Are all Valid.

Thanks
SANK
 
Re: Hi Jllag1

Originally posted by sank
Thanks for Input.
Let me write in detail.

Since i filed i485 in Oct 2002, I have had EAD & h1B.
I was in bench for 6 months due to poor economy. After 180days In may 2003, I have used EAD to work with another employer for just 1 month.

Then i got project through GC Sponsering Company on Aug 2003. That time they did not ask for my EAD(EAD valid until Feb 2004) to File i 9 form.
They had my h1B. In jan 2004, That h1b got Expired & filed 7th yr Extension. I worked for my GC Sponsering Company until Jan 2004.

Meanwhile I applied for EAD Renewal On my Own & got in Dec 2003. In Feb 2004, i switched to new Employer using renewd EAD.

My Question During that period Aug 2003 to Jan 2004, my company did not use my EAD to file i9 form. They used my h1b.
What are the problem that Could arise between Aug 2003 to jan 2004????. Is it an Unautorized work Period.

Today I spoke with my attorney abt this. He said it is not problem. Anyway I will check with other attorney too.

During my work period, My EADs Are all Valid.

Thanks
SANK
Click to expand...

Let me see the timeline:

I-485/EAD : Apply in Oct 2002.
1st EAD received : Valid from Feb 2003-Feb 2004
2nd EAD received : Valid from Dec 2003-Dec 2004

You were on bench from Oct 2002 (technically you lost your H1 at that time, I think. If no pay as certified in LCA, no H1). But as you had already applied for 485, you had preserved your legal status in US.

In May 2003, you used your 1st EAD to work for another employer. In Aug 2003, you went back to your original sponsoring H1 company and worked on your original H1 until Jan 2004. In Feb 2004, you used your 2nd EAD to switch companies.

So, from Aug 2003-Jan 2004, you were technically not on H1 (actually, in my opinion, you lost your H1 status in Oct 2002 when you became benched), even though your employer filled up I-9 and showed the basis of H1. But your saving grace is, you had valid EAD during that time. So, even though employer made mistake in filling I-9, you are good to go as you had valid EAD. No problems.
 
Re: Re: Hi Jllag1

Originally posted by jllag1
Let me see the timeline:
(actually, in my opinion, you lost your H1 status in Oct 2002 when you became benched),
Click to expand...

He did not loose his H1 when benched but lost when used his EAD.

Originally posted by jllag1

Actually, if you were working 2 jobs, one on H1 and one on EAD, you can always leave country and come back on H1 and keep working for the original sponsor.
Click to expand...

For one job using EAD and other H1 is not possible. If you do this way you loose your H1 status. And you are a pending AOS.

Sank

What was the expiry date of first EAD? So unauthorized period is between the expiry date of first EAD and approval date of second EAD. It looks like one month for me. It should not be a problem. Officer would consider 245(K).
 
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Hi Tammy2,
Thanks for your response.

My First EAD is Valid from Feb 11th 2003 to Feb 11th 2004.

My Second EAD is valid from Feb 12 th 2004 to Feb 12th 2005.

I am aware I did not work in any Expired date of EAD.

Also From my Attorney One more Point I would like to tell you
That One Can work if his EAD renewal is pending.

In my case , I never worked in Pending period of my EAD.

Tammy2 , jllag1 Thanks for Kind Attention to my case.

Thx
SANK
 
Section 245(k)

Section 245(k) enables a person who is adjusting status in an employment-based category (whether on the basis of a labor certification or in one of the special Green Card categories that does not require a labor certification or job offer) to adjust, even if s/he has been *out of status* or *worked without authorization for less than 180 days*. This provision does not require an immigrant petition or labor certification to have been filed on or before any particular date and there is also no penalty fee involved
---------------------------------------------------
This is at http://murthy.com/adjsta.html:
-------------------------------------------------------
The above 180 Days is again total of 'agregate days' counted--seemingly construes,
when one is in 'out of status' and/ or 'Worked with out work
autorization'. not more than 180 days in aggregate.
 
Thank god

Originally posted by sank
Hi Tammy2,
Thanks for your response.

My First EAD is Valid from Feb 11th 2003 to Feb 11th 2004.

My Second EAD is valid from Feb 12 th 2004 to Feb 12th 2005.

I am aware I did not work in any Expired date of EAD.

Also From my Attorney One more Point I would like to tell you
That One Can work if his EAD renewal is pending.

In my case , I never worked in Pending period of my EAD.

Tammy2 , jllag1 Thanks for Kind Attention to my case.

Thx
SANK
Click to expand...

That is good news.
 
Hi Jllag1,
I got only One month Salary During the bench time.
I got the Half of the LCA salary.

Thx
SANK
 
Hmmm, I don't know. Your employer is really supposed to pay you even if you are on bench if they did not terminate you, which obviously they did not. You might be eligible for back pay. Check into it. I really don't know how it impacts H1B status. In your case, thats moot anyways.
 
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