Going back to H1 from EAD (Please help )

T

trustpower

Registered Users (C)
Got married to US Citizen,got EAD and started working on EAD since July 2006.
I completed 5 years of H1 before starting to work on EAD in July 2006.
H1 is valid till OCT 2007.

My Question is can i go back to H1 and complete 6 year and during the time ask my employer to file for GC?



Thanks to everyone who can help in this regard.
 
Did your marriage fail then?

This is a question best asked of your employers immigration attorney I think.

However, lets try to answer: Did you use your EAD, or just get it? If your H-1B is still valid, then you should be able to renew it. Only using a EAD invalidates H-1B, not applying for one.
 
Most likely, you can not change the status in the US. Change of status application is for between non-immigrant status' and changing from authorized stay(AOS) to H1 non-immigrant status is likely to be denied. There are some reports that people tried it and got denied based on that reason.

In such a case, your H1 will be approved WITHOUT change of status, and then you need to go out of the US, get the H1 stamp and reenter the US.

When it comes to EB GC, you need to provide more info as your 6th year end is close.
Provide the info about country of birth and job requirement(requring MS or BS, how many year experience is required etc. ) you are going to apply GC for.
 
Yes i started using the EAD from July 2006.

I am fedup with the marriage and wants to end.

My H1 is still valid till OCT 2007.

can my current employer transfer the H1 and i can start working on H1?
 
What do you mean by "using the EAD"? Did you change to another job other than the one sponsoring your H-1B? If so your H-1B is no longer valid no matter what the stamp in your passport says.

Marriage guidance might be your best bet.
 
Yes i started using the EAD from July 2006.

I was employed by company "A" and when i got my EAD i moved to company "B".

I know that my H1 is void now since i started using the EAD but my passport still have H1 visa stamped on it and valid till OCT 2007.

Since i only completed 5 years out of 6 yrs max,can i ask Company "B" to transfer my H1 or do they have to file for new H1 ?
 
You are exempt from quota, but you probably need to file H1 petition w/o COS.
 
Last edited by a moderator:
You used your EAD (changed employers) and now your H1 is invalid, irrespective of whether the actual visa in your passport has been cancelled or not. It cannot be resurrected, save for reapplying, and these days the pool of available H1's is so small compared to the number of people applying, that it may take quite a while to get another one.

Make that marriage work - its probably your only option of remaining (legally) in the US.
 
boatbod said:
It cannot be resurrected, save for reapplying, and these days the pool of available H1's is so small compared to the number of people applying, that it may take quite a while to get another one.
Click to expand...
:confused:
S/he is not subject to quota, and there is premium process available.
 
GotPR - can a H-1B be renewed when it has been abandoned for 8 months? I don't think so, so if they re-applied then I believe they would be subject to quota.
 
dr_lha said:
GotPR - can a H-1B be renewed when it has been abandoned for 8 months? I don't think so, so if they re-applied then I believe they would be subject to quota.
Click to expand...

Yes. Each H1 is brand new petition therefore new petition won't be affected by what happened on the old petition.
I think confusion commonly comes from the term "transfer" or "renewal" which seems as if current H1 asset is tranfered or renewed. But fact is, as mentioned, each H1 petition is independent and does not affect each other.

According to the law, one who was on H1 within last 6 years are exempt from quota.


INA 214(g) (7)

(7) 2/ Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.
 
Last edited by a moderator:
OK. Cool.

BTW - I did realise there's no such thing as a H-1B transfer or renewal! I was on a H-1B for 6 years! :)
 
dr_lha said:
OK. Cool.

BTW - I did realise there's no such thing as a H-1B transfer or renewal! I was on a H-1B for 6 years! :)
Click to expand...
Great, You already knew it :)

To OP.
POssibility of your H1 beyond Oct 07 depends on your EB category and country of birth(if you pursue EB route), but good news is since you were not on H1 since last July, you can recapture that time for extra H1 period.
 
I want to make it work but my wife went through depression and she behaves abnormal at time.
Someone she goes crazy on me and her family and i am trying to be patient,with work and all the things going on i cannot handle her and her talk against me.

I want to thank everyone who replied and helped me.
 
Seems to me the caveat "unless the alien would be eligible for a full 6 years of authorized admission" may well come into play here. Since the current H1 has been abandoned, its not going to be either a renewal or an extension, so that basically puts you back at the starting block?

Consult an immigration attorney for a more reliable opinion.
 
boatbod said:
Seems to me the caveat "unless the alien would be eligible for a full 6 years of authorized admission" may well come into play here. Since the current H1 has been abandoned, its not going to be either a renewal or an extension, so that basically puts you back at the starting block?
Click to expand...
As its been pointed out several times on this thread, there's no such thing as EAD "extension" or "renewal". Every H-1B application is considered a new one, even if you remained at the same job. The only thing is that if you already have an H-1B, you're not subject to quota.

That said, I remain unconvinced that with a 8 month gap in H-1B, that the OP is going to be able to get another. Really this should be a question posed to a company immigration lawyer.
 
boatbod said:
Seems to me the caveat "unless the alien would be eligible for a full 6 years of authorized admission" may well come into play here. Since the current H1 has been abandoned, its not going to be either a renewal or an extension, so that basically puts you back at the starting block?

Consult an immigration attorney for a more reliable opinion.
Click to expand...
Sorry to say this, but you are on your own interpretation, and is not based on what law says.

Do you know what the requirement for full 6 year eligibility ? It is clearly stated in INA and interruption of status is not a part of that.
I really don't understand what "abandoned" mean ? There is no such thing called abandonment of H1. H1 status may get invalidated if you use EAD, but that is only for that particular physical presence in the US. And H1 petition remains valid until it's expired or cancelled by employer.
In either way, you can apply new H1 petition.

This H1 quota rule is very basic and is well known.

We have regular Q&A sessions with Mr. Kanna(You know who he is, right ?).
Somebody asked a question regarding EB GC process in Mar 8 conf call and, along with the same line, the discussion went to 7th year extension ability.
The guy has already exhaused full 6 years and is using EAD for a while. Mr Kanna suggested to get back to H1 and the guy got surprised that he had such an option. Mr Kanna said even though one exhaused 6 years and then used EAD for 2 years, one still can get 7th year extension. There is a little more background why the guy thought 7th year was not possible under such circumstances, but I don't go there as I have to quote a few CIS memos for that. The point is even if you are on H1 6 years and spent some time on EAD, you can still get H1(7th year or beyond) if you are eligible to 7th year.
7th year extension is possible after using EAD, then why not possible to get the remaining period of H1 w/o being subject to quota ?
Being on EAD won't affect your ability to get "extension"(and of course, so called "extension" is exempt from quota).

You can listen to recorded conversation of conf call.
Go to
http://www.immigration.com/improving_immigration/efforts.html
and listen to MP3 file from March 8.
The discussion I referred to is sometime around 15 min to 17 min.
 
Last edited by a moderator:
You must log in or register to reply here.
Top