From EAD/AP back to H1-B

Nice discussion.

A question popped in my mind:

Once an individual works based on an EAD approval for a job, he or she cannot return to that position on H-1B visa.

So does it not means that if you continue to work on H1b for your sponsoring employer and use EAD to work for a new employer (and hence a new position), you can still keep that H1b running and live?

Please point me to the rule which states otherwise.
 
I was asked to comment

Originally posted by Participant
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
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This is at http://murthy.com/adjsta.html:
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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.
Click to expand...


The above is correct interpretation of 245K. What is interesting in the history of 245K is that there was never a clear answer whether it also applies to derivative benficiaries who have been out of status (having worked illegally less than 180 days, etc.). Neverheless, CIS seems to accept that the same protection applies to the derivative beneficiaries of eb applications.

Jharkhandi, just email me if there are any other questions. I am not following this thread.
 
But the question remains what is Status? what forces some one to use 245(K)?
Now the people interpreting staying on the bench for couple of month as out of status?
Difference between illegal stay and out of status
 
Originally posted by tammy2
But the question remains what is Status? what forces some one to use 245(K)?
Now the people interpreting staying on the bench for couple of month as out of status?
Click to expand...
As per FAQ on H1B by USCIS on web site,at http://uscis.gov/graphics/howdoi/h1b.htm,

What if the alien’s circumstances change?

***AS LONG AS the alien CONTINUES to PROVIDE H-1B SERVICES for a U.S. EMPLOYER, most changes will not mean that an alien is out of status.***
An alien may change H-1B employers without affecting status, but the new H-1B employer must file a new Form I-129 petition for the alien before he or she begins working for the new employer. The merger or sale of an H-1B employer’s business will not affect the alien’s status in many instances. However, if the change means that the alien is working in a capacity other than the specialty occupation for which they petitioned, it is a status violation.

Must an H-1B alien be working at all times?

***AS LONG AS the employer/employee RELATIONSHIP exists, an H-1B alien is still in status.**
An H-1B alien may work in full or part-time employment and remain in status. An H-1B alien may also be on vacation, sick/maternity/paternity leave, on strike, or otherwise inactive without affecting his or her status.
From the above,
If the alien is not providing 'Services'( may mean-not in job or violated the aprroval in line with terms of approval,relationship as defined) etc. seems UCIS may construe,the alien is 'out of status'--- if taken in the most conservative approach and if at all taken up by them.
 
Hi participant

Participant,
Thanks for collecting this information.

I read the underlined info that was given in your link.


Can an H-1B alien intend to immigrate permanently to the U.S.?

Yes. An H-1B alien can be the beneficiary of an immigrant visa petition, apply for adjustment of status, or take other steps toward Lawful Permanent Resident status without affecting H-1B status. This is known as "dual intent" and has been recognized in the immigration law since passage of the Immigration Act of 1990.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>
During the time that the application for LPR status is pending, an alien may travel on his or her H-1B visa rather than obtaining advance parole or requesting other advance permission from Immigration to return to the U.S.
>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>>.

I got this question from above lines:

My Question is:
When i 485 is pending & AP is pending, One want to go out of US, can he leave US by h1b?? Once AP is approved &
AP is sent to him to his place, Can he use AP to Enter into US??

OR One has to wait for AP approval before he leaves the US.

OR can one file AP(AP Renewal) while staying outside the US(leaves country using H1B or AP) through Attorney & Once approved Can he return to US once AP mailed to him.


Thanks
Sank
 
Re: Hi participant

Originally posted by sank
[My Question is:
When i 485 is pending & AP is pending, One want to go out of US, can he leave US by h1b??
-----------------------------------
Yes,using H1B if one wants to return on H1B.
------------------------------
Once AP is approved &
AP is sent to him to his place, Can he use AP to Enter into US??

OR One has to wait for AP approval before he leaves the US.
-------------------------------------------------------------------------
If wants to use AP,seems the person need to be here before approval ,go,use AP in return(As per USCIS memo on AP) .There are many posts by members on this .Check AP and related forums for more info'
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OR can one file AP(AP Renewal) while staying outside the US(leaves country using H1B or AP) through Attorney & Once approved Can he return to US once AP mailed to him.
-------------------------
No.See above reply
----------------------------------


Thanks
Sank [/B]
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Regarding 'duel intent' in the above mentioned, deals Broadly only
about the possibilty of having Alien's intent simulataneously both
Non-immigrant and immigrant purpose.
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Not a leagl advsie.
 
Hi Friends,
I have a doubt regarding moving from H1 -> EAD

I am the primary GC applicant. I have a H1 valid till 2006 and my wife also has a H1 from some different company till 2005. We both have our H1 stamped till 2006.
Recently we got our EADs. My wife needs to change employer. Can she go ahead and use her EAD ? I think this will invalidate her H1 visa. Is it an advisable option ?Or should she try for H1 transfer , rather than using EAD ?

I however shall continue to use my H1B-only. We still do not have the I-140 cleared, so just being cautious, although the 140/485 application has been pending for more than 180 days now.
If my job gets in jeopardy , would that imply that my wife's EAD is also affected ? And that she would need new H1 to work again ?

Please suggest anybody as we need to take a quick decision here.

Thanks A Lot !!!
 
Originally posted by rohit_bha
Hi Friends,
I have a doubt regarding moving from H1 -> EAD

Thanks A Lot !!!
Click to expand...
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Once she uses EAD she will loose H1.
After that if there is a problem with your I140 still you can continue on your H1(since you are not using EAD) but she will have to leave.(since derivative and as not on H1 or H4).
Hence ,better to maintain her H1 than to go for EAD, to the extent possible .
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Not a legal advise.Lay man's opinion.
 
Sank

Can you double check following with your attorney:

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

I don't believe EAD works the same way as H1-B works. One can work while H1-B is pending extension (and older H1 expired) but not with the pending EAD (while previous EAD is expired).

In your case it was fine as you had valid EAD throughout and second EAD came back before first one expired.



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
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Totally new H1, any risk in ...

Guys,

I applied for new H1 with new employer after using EAD for long time, I got approval, but the approval notice mentions clearly that my status is not H1 and I will only be considered H1 if I leave the country and get visa stamp and re-enter the country with this new visa.

I have i485 application pending since March 2002

The Question is?
When I enter the country using this visa and not the AP, is this considered abandoning my I485 by any chance? Does this have any effect on my 485 application?

Any input is greately appreciated.
 
Re: Totally new H1, any risk in ...

Originally posted by hassoon
Guys,

The Question is?
When I enter the country using this visa and not the AP, is this considered abandoning my I485 by any chance? Does this have any effect on my 485 application?

Any input is greately appreciated.
Click to expand...

No, its not considered abandonment of your AOS. Thats a priviledge that H1/L1 hold. But to be on safe side, do keep a valid AP with you when you go out of US, in case there are problems with H1 visa at your US consulate.
 
Re: Totally new H1, any risk in ...

Originally posted by hassoon
Guys,

I applied for new H1 with new employer after using EAD for long time, I got approval, but the approval notice mentions clearly that my status is not H1 and I will only be considered H1 if I leave the country and get visa stamp and re-enter the country with this new visa.

I have i485 application pending since March 2002

The Question is?
When I enter the country using this visa and not the AP, is this considered abandoning my I485 by any chance? Does this have any effect on my 485 application?

Any input is greately appreciated.
Click to expand...
-----------------------------------------------------------------------
To put it 'broadly' H1b visa is of duel intent so you can have/continue the immigration intent simultaneously.
But if you are ' changing' sponsoring employer and if you want
the portability of your approevd I140(if you have one), to new employer,you may want to use AC21.Otherwise you are leaving sponsoring employer and may loose.
(see AC21 threads for details).
Further it depends on specific to your case whether you have approved 140, if you have worked with any employer between EAD and H1 gap( if any accrued)et al.If it is contact your laywer.
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lay man's opinion.Not a legal opinoin.
 
Hello,

My question similar to one posted by "hassoon" but with a little twist.

I currently work on H1-B for my employer, who has also sponsored my GC. I have my I-140 approved, I also have valid EAD/AP (haven't used EAD/AP) and my I-485 application has been pending for more than 180 days.

I am planning to join a new employer but I DO NOT want to use the EAD (i.e. want to maintain my H1-B status), the new employer is wiling to file H1-B, now my question is


Q1. If this new employer files my H1-B and I join this new employer on H1-B and do not use EAD, will that abandon my I-485 (as the new employer is not the sponsor of I-485) ?

Q2. What should be done to continue I-485 (as the new employer is not the sponsor of I-485) ?

Thanks in advance,
Sunny
 
Originally posted by sunil_verma

Q1. If this new employer files my H1-B and I join this new employer on H1-B and do not use EAD, will that abandon my I-485 (as the new employer is not the sponsor of I-485) ?

---> No, it won't abondon your H1B. Your 485 is yours, not your employers. And it is a very good idea to keep H1 status.

Q2. What should be done to continue I-485 (as the new employer is not the sponsor of I-485) ?

---> Nothing, you can consult with your lawyer to decide if you want to send in a AC-21 notice or just sit tight.

Thanks in advance,
Sunny
Click to expand...
 
jllag1,

Thanks for the reply. You mean I-485 in answer to the first question, right ?

Your answer: No, it won't abondon your H1B (not H1B but I-485)

- Sunny
 
Sorry, I meant, your 485 won't become invalid. You will be 485 pending until you get a decision on it.
 
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