go back to H1 from EAD. Please Help!!!

tihomg

Registered Users (C)
#1
I was layed off after 180 days of EB I485 application, and then hired by new company on EAD. New company applied for new H1, which hasnt been approved yet. Meanwhile I also worked part time for another job on EAD. My new H1B from the primary job is about to get approved. Can I switch back to H1B status with my primary job. I have no intentions of continuing with part time job. I want to switch to H1B because I am planning on getting married soon, and H1B will enable me to get my spouse here on H4. Advise will be greatly appreciated. I have pay slips from old company I was layed off from and also pay slips from new company with a break of under 15 days. I was unemployed for that period. So proving valid employment status should not be a problem. And since new company applied for new H1B, my H1B status should still be re-instatable. I am not sure if I have a reason to worry about stamping of my H1B at the consulate. I am more concerned about the GC interview if I have one, they could question the validity of my H1 and my wife's H4 because I had switched to EAD. Is it possible to switch back from EAD to H1 at all? Please advise.... Help will be greatly appreciated.
 

tihomg

Registered Users (C)
#2
please help!!!

I am disappointed that I have not received any responses to my post..... Gurus please help. This is a real situation, very urgent too...... Thanks!!
 

ghost-rider

Registered Users (C)
#3
once you use EAD , H1 voids. In your case if your comapny has filed for new H1 then you have to go to your home country and get it stamped and come back on H1 and then you can bring your wife back on H4. There is little grey area in that since u have ead your are under AOS pending and to travel outside country you need approved AP. Cause then ou will be abondoning your 485 and it will all depend upon officer at POE. Check with your lawyer on this too.
 

tihomg

Registered Users (C)
#4
thanx

Thanks for the response ghost rider. I have applied for AP, I plan to travel on AP when I go to India for stamping new H1 and marriage. I hope it will ok if I do that. Please advise.
 

140_takes_4ever

Registered Users (C)
#5
tihomg,

There should be no problems if you travel on AP! Remember that since you have worked on EAD, you have to enter on AP and CANNOT enter on H1, unless you want to abandon your AOS!
 

tihomg

Registered Users (C)
#6
entry into US on AP

Hi! 140_takes_forever, thanks alot for the response. Just need one last clarification. Your response indicates that since I have used EAD I should enter into US only on AP. Is this true even afer I get new H1B. In other words when I go to India for stamping of new H1 and H4 stamping for spouse, should I return to US on AP. If yes, then should I get H1 stamped on my passport or not?

Thanks alot
tihomg
 

ruxrux

Registered Users (C)
#7
I wouyld reccomend entering on AP and not messing with H1 - you never know, INS might "think" you've abandoned your AOS process.

Note - "think". Not think.
 

tihomg

Registered Users (C)
#8
is it advisable to get stamp on passport?

Thanks for all ur responses. I understand that it is best if I re-enter US on AP, but is there any benefit in getting H1 stamped on my passport? Since my wife and I will be entering US together, wouldnt it be a problem if she is on H4 and I enter on AP and dont even have a H1 stamp on my passport???? please advise.
 

140_takes_4ever

Registered Users (C)
#10
There is no problem if you enter the country on AP and her on H4. Just remember to fill out two I-94's (one for you and one for your wife). She will need to stand in line seperately while you go for secondary inspection.

You need to stamp the H1 Visa on your passport because your wife will have to use it to get her H4 stamp.

Good luck!
 

GreenWaiter

Registered Users (C)
#11
If I were you, I would talk to my attorney and determine the best course of action. Please share your attorney's feedback with this thread or forum.

GW
 

BitterMan

Registered Users (C)
#12
Originally posted by 140_takes_4ever
There is no problem if you enter the country on AP and her on H4. Just remember to fill out two I-94's (one for you and one for your wife). She will need to stand in line seperately while you go for secondary inspection.

You need to stamp the H1 Visa on your passport because your wife will have to use it to get her H4 stamp.
To the best of my knowledge, in order to enter on H-4, its primary H-1B must be in H-1B status. Therefore, if H-1B enters on AP, the aforementioned scenario would not work. Stamping a new H-1B stamp in the passport does not make much sense if it is not going to be used.
 

ghost-rider

Registered Users (C)
#13
AP is valid for entry and it will not determine your work authorization. Once u enter on AP the from Day one you start work tell your company to change your I9 for H1B VISA. That way u entered on AP but you work on H1b . Thats My take, check with some lawyer on this though. Second at point of entry Officer at POE will also see your new H1b stamp so it will be up to his understanding what your VISA status is then.
 

BitterMan

Registered Users (C)
#14
Originally posted by ghost-rider
AP is valid for entry and it will not determine your work authorization. Once u enter on AP the from Day one you start work tell your company to change your I9 for H1B VISA. That way u entered on AP but you work on H1b . Thats My take, check with some lawyer on this though. Second at point of entry Officer at POE will also see your new H1b stamp so it will be up to his understanding what your VISA status is then.
No, that does not work the described way. Once you entered on AP, your status is parolee and in order to start (as opposed to continue) working on H-1B visa, you must be in H-1B status. A change of status can be filed with INS (or whatever they prefer to call themselves now - USCIS) in order to get from parolee to H-1B, but I am not familiar with the process.
 

140_takes_4ever

Registered Users (C)
#15
BitterMan, ghost-rider,

My take on the issue was similar to that of ghost-rider. File a new I9 and state employment document as H1. I could be wrong.

tihomg,

Could you please ping your lawyer and when you find out what his/her opinion is could you post a follow up post?

Thanks!
 

AverageJoe

Registered Users (C)
#16
A question tho'

Based on what I have read elsewhere, I am led to believe that once on EAD, applying for H1 status will be taken as an abandonment of the GC application.

It is more likely that have I a screwed up interpretation (with my very limited knowledge). I am in a similar situation, working on EAD, hence like to know if this is true.
 

tihomg

Registered Users (C)
#17
will check with lawyer

Thanks to everyone for your responses. I wil check on the issues raised by everyone with my lawyer and post a response as soon as I hear back from him.
 
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