Gurus, Please answer this one question

R

rajbalu1

Registered Users (C)
Facts:
- I am currently in the 7th year of my H1. H1 expires Aug 2006.
- 140 approved and 485 pending for 14 months.
- I am planning to file AC21 with a new company and start working on EAD.

Question:
- After few months, lets say in Jan 2006, IF REQURIED(Incase there is an issue with my 485) can I technically file a new H1 or a H1 transfer with the new company and go back to H1 after having worked on EAD?
 
You can always file an H-1B transfer with the new company, which I recommend you do. Until you get the I-485 approval and probably even the GC in your hand, keep extending and/or transferring the H-1B to ensure you are covered, regardless of the EAD, while at the same time renew the EAD. Ideally, keep renewing the EAD AND transfer/extend the H-1B annually. By doing both, you cannot go wrong.
 
Hello bjorn,

I do not understand what is the use of keeping H1B - Like in my case I have a choice to continue with my H1b or change to EAD Status (Have EAD Card but I-140 still pending). Now the main problem is that currently I am on bench and the Comapny is supposed to pay me regular salary on H1B even if I am on bench - the only way the COmpany is not obligated to pay me when I am on bench is when I am on EAD Status. I do not wan't to hurt my relations with the Company as they are processing my GC and I need their support to follow through with GC. So in my case going on EAD is only option as anyhow my H1B is going to expire by Dec 2006 - and I think if my i-485 gets denied than there is no way I would be able to stay in US after Dec'2006 - Please suggest if there is any way? - And what's the use of staying couple of more months in US idf I will nt be able to get an H1B extension?

Also incase of "rajbalu1" how is he going to benefit by keeping his H1B as his H1B is anyhow going to expire in August 2006. So even if his I-485 gets denied he will not be able to stay in US beyond August 2006. Please suggest if I am wrong? Please suggest solutions.

Thanks
 
I guess the benefit or extending the H-1B is that if your I-485 is denied, your EAD is automatically invalid at the very same instance. By having the extended H-1B, you can work on the H-1B extension since the expiration date is several months from now while filing an I-485 appeal or motion to reopen the denied case. If you are confident that your I-485 will be approved, go ahead and skip the H-1B. It's a matter of covering your bases should you run into problems. That's all.
 
Thanks bjorn, Greatly appreciate your input. have couple of more related queries -

1) Once I-485 gets denied how many days does one have to move out of the country without being out of status. As I would need atleast a month to wrap up my stuff - get a airticket - close accounts etc - sell stuff etc.

2) I am not sure as to whether my I-140/I-485 will get approved/denied but incase I get rejection than would I be able to get a 7th year H1b extension which is going to expire in Dec' 2006?

3) If I cannot get an extension than then the only advantage by being on H1B is that I can apply for appeal after getting I-140/I-485 rejection? But then the employer is required to pay me a fixed salary on H1B even when I am on bench - and this is something that the employer will not agree to do? Please suggest a solution out of this (other than ofcourse looking for a new contract) as I might remain on bench for more than a month??

Thanks
 
1) Technically, it's ASAP because you are then in illegal status, whatever that means to the USCIS. If you wait a month or so, what are they going to do? Deport you?
2) Good point, and I'm not sure if the H-1B extension becomes invalid with an I-485 denial, the same way the EAD becmoes invalid. Something to look into.
3) Why a fixed salary on H-1B? They have to pay the minimunm salary as stated on the labor condition application, but they can always pay more by not specifying a maximum salary. Also, what do you mean by "bench"? If you are on a consultation type contract, I would apply the AC21 and take another job with more security. Keep in mind that according to the approved I-140, the employer have to pay a minimum salary as stated on the I-140 application, similar to the minimum salary they have to pay if you are on the H-1B. The I-140 and H-1B salaries should be pretty much the same for identical jobs, so salary-wise there should not be a difference for the employer. If they plan to lower your salary below what's specified on the I-140 and according to the labor certification if you are on EAD and prior to I-485 approval, you are technically in violation which can lead to I-485 denial due to inability to pay specified salary.
 
Hello Bjorn,

Thanks for taking time for this, but my question still remains unanswered.

After having used EAD, can I file for a new H1 transfer and go back to H1 from EAD?

~raj
 
rajbalu1 said:
After having used EAD, can I file for a new H1 transfer and go back to H1 from EAD?
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If you are eligible for more time in H-1 status (either by not hitting six years or claiming a 7th year AC21 H-1) then your employer can certainly petition for you. You might need to leave the country and get a new visa stamp.

I really would not worry about an I-485 denial unless there are significant periods of out of status time, a criminal record or other funny stuff. Most I-485s are approved.
 
Mr. Green said:
What do you consider a significant period of out of status? More than 6 months?
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No one has clear answers what is significant period of out of status. It's up to CIS, but I guess a month might be too long.
if you exceed 6 months out of status, it's no longer significant, but very serious because you can not enter the US next 3 years.
 
GotPR? said:
No one has clear answers what is significant period of out of status. It's up to CIS, but I guess a month might be too long. if you exceed 6 months out of status, it's no longer significant, but very serious because you can not enter the US next 3 years.
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This is not the case. If you are the beneficiary of an EB-485, you can be out of status or illegally present for up to 180 days and claim 245k relief. USCIS has no discretion in this matter - if you are eligible for 245k relief, they must approve the case.

If you have been out of status for more than 180 days but not illegally present (eg. an H-1B losing his/her job, but the I-94 has not expired yet) then you cannot adjust status (unless you can claim 245i relief) but you can do Consular Processing. Again, USCIS has no discretion here - if they discover you were out of status for >180 days, they must deny the case.

Finally, if you have been illegally present for more than 180 days, you are subject to the 3 or 10 year re-entry bars (so you cannot do CP) and you must wait for 245i to be renewed.

Again, this is all non-discretionary. If you are under 180 days, USCIS must approve your case. If you are over 180 days, USCIS is forbidden to approve your case. Don't get the idea that USCIS can act artibrarily in an I-485 proceeding - they cannot.
 
TheRealCanadian said:
This is not the case. If you are the beneficiary of an EB-485, you can be out of status or illegally present for up to 180 days and claim 245k relief. USCIS has no discretion in this matter - if you are eligible for 245k relief, they must approve the case.
.
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RealCanadian,
I need a clarification which might be a little bit out of scope of this thread, but I'd appreciate your input.
Suppose one is working with H1B(has not used AP or EAD) after I485 filing and this one is under H1B status, but not AOS pending status because one can have only one status in the US. Then, his H1 job was terminated. My understanding is that his status does not change to AOS pending automatically upon losing job, unless he takes some action(such as using AP, or using EAD), thus he will be out of status even though AOS has been already filed.. Is this correct ?
If that is correct..., once he switches to AOS pending "status"(by entering the US with AP or using EAD to work) within 180days, he will be saved by 245(k). Is this correct ?
Appreciate your input.
 
GotPR? said:
My understanding is that his status does not change to AOS pending automatically upon losing job, unless he takes some action(such as using AP, or using EAD), thus he will be out of status even though AOS has been already filed.. Is this correct ?
Click to expand...

No, becoming an adjustee is completely independent of EAD/AP use. There is no requirement, as a matter of fact, that an adjustee have an EAD or AP at all. When my wife's H-4 expired, she had neither.

When one's non-immigrant status expires or is violated (by losing job, etc.) then one automatically becomes an adjustee.
 
TheRealCanadian said:
This is not the case. If you are the beneficiary of an EB-485, you can be out of status or illegally present for up to 180 days and claim 245k relief. USCIS has no discretion in this matter - if you are eligible for 245k relief, they must approve the case.

If you have been out of status for more than 180 days but not illegally present (eg. an H-1B losing his/her job, but the I-94 has not expired yet) then you cannot adjust status (unless you can claim 245i relief) but you can do Consular Processing. Again, USCIS has no discretion here - if they discover you were out of status for >180 days, they must deny the case.

Finally, if you have been illegally present for more than 180 days, you are subject to the 3 or 10 year re-entry bars (so you cannot do CP) and you must wait for 245i to be renewed.

Again, this is all non-discretionary. If you are under 180 days, USCIS must approve your case. If you are over 180 days, USCIS is forbidden to approve your case. Don't get the idea that USCIS can act artibrarily in an I-485 proceeding - they cannot.
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TheRealCanadian,

Do people have to ask for 245k relief when they send their I-485 if they were out of status for less than 180 days? Or you just send the application and the immigration officer realizes that the person was out of status for less than 180 days and the person is relieved under 245k automatically? How does it work?

Thanks in advance!
 
Mr. Green said:
Do people have to ask for 245k relief when they send their I-485 if they were out of status for less than 180 days? Or you just send the application and the immigration officer realizes that the person was out of status for less than 180 days and the person is relieved under 245k automatically?
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The ajudicators should be aware that 245k relief is automatic and does not need to be explictly requested. I don't think I've seen a case where an NOID was incorrectly issued where a person clearly qualified for 245k.

The only time I'd explicitly mention 245k is if I was submitting an I-485 with an I-94 that was expired for <180 days.
 
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