H-1B transfer in 7th year extension

[NYImmigrant]

Hello Gurus,

I am on a 7th year extension of my H-1B. I have my 2nd EAD but not using it as my wife is on an H-4 and we couldn't file her 485 due to retrogression. I am expecting my PD (March 15, 2001/India/EB3) to be current very soon.

I got a very good offer for job and am trying to find.

1. Can 1 do H-1B transfer in the 7th year ?
2. Should I send AC21 letter even if using H-1B ? (I think yes)

What other options do I have ?

 

[NYImmigrant]

anyone

anyone has anything to say in this regard ?

 

[ufo2002]

Hi,

You already have the EAD... I am not sure why your wife's status is not the same as you unless you married her AFTER getting EAD? If that is the case, then I am not sure if she would be affected by you switching jobs.
It doesn't matter if you are on 7th year extension. That EAD you got is much better than AC21 filing, so just contact your lawyer and make sure you can prove EAD status + more than 180 days of EAD with your employer that filed your EAD, then you can go ahead and change jobs.

Good luck.

 

[NYImmigrant]

Hi,

You already have the EAD... I am not sure why your wife's status is not the same as you unless you married her AFTER getting EAD?

You are right. I married her after getting my EAD. I am maintaining my H-1 status so she can stay on the H-4.

So here is the situation... I have to maintain my H-1 and not use EAD.

And the question is "can I switch employer in the 7th year H-1B extension while maintaining the H-1 status?"

 

[ufo2002]

OK, you committed a cardinal sin by getting married after your EAD...
I am sorry, just joking, but seriously...

EAD legally means you are now out of the H1B visa and moving onto GC... in fact you are just one step from getting the card.
Because in order to extend your H1-B beyond 6 years, you have to have a GC in process, so USCIS will ask your lawyer if you are in GC process and they will find out you are already in EAD, so they may not even bother giving you H1B extension, and just issue you Advance Parole if you need to travel overseas. What does this mean for your wife? Not good... she can't go on using H4... and she has to apply for GC under Family category I believe (with you as the sponsor/dependent). This last part, I am not sure but you definitely should talk to your lawyer. I just know that my friends who decided to marry after EAD got into alot of problems for their wives.

I don't know if you can fool USCIS by going through AC21, just to maintain H1-B, but AC21 is a landmine and causes problems for some people. So good luck.

 

[AlterEgo]

NY,

I am in the same situation, I posted this question in another forum and got the response that H1 after 6 years is still an H1 and it can be used for transfers without affecting AC21 process. I have not obtained any attorney's advice on this issue so not sure what is the reality. One thing I know is that obtaining an EAD does not cancel your H1 if you do not use the EAD. My wife was able to get an H4 recently even though I have EAD since long.

Please post if you find more info.

Thanks.

 

[avi101]

Hello Gurus,

I am on a 7th year extension of my H-1B. I have my 2nd EAD but not using it as my wife is on an H-4 and we couldn't file her 485 due to retrogression. I am expecting my PD (March 15, 2001/India/EB3) to be current very soon.

I got a very good offer for job and am trying to find.

1. Can 1 do H-1B transfer in the 7th year ?
2. Should I send AC21 letter even if using H-1B ? (I think yes)

What other options do I have ?

- Yes, you can do an H1 transfer in your 7th year.
- Yes, you can send AC21 even when using H1B. By filing AC21 you are just showing who you intend to work for after you get your GC.
Make sure you satisfy AC21 rules before jumping
---- I140 has to be approved (not sure from your post)
---- 180 days after I1485 application ( you got your 2nd EAD, so this would be covered)
---- Similar job duties

- As to whether you should send (irrespective of whether you are on H1B), there are two schools of thought both with convincing reasons. Some recommend sending it proactivley others do not.

Some reasons why people say there is no need to send AC21 letter are
- AC21 memo does not mention anything about sending AC21 or is there any form to be filled.
- It is not clear what USCIS does with AC21 that you sent; probably kept on file. If it has been a while since you applied for I485, they send an RFE for employment letter in most cases irrespective of whether you filed AC21 or not (based on anecdotal evidence in this forum).
- Possibility that you may change your job again later before approval.
- Why do something unless asked.

Some reasons supporting sending AC21 are
- General sentiment that its better to be proactive and let USCIS know of change in employer since there has been a change to your original application and intent.
- Suppose your application is close to adjudication but you don't want to continue with your present employer and you want to take up\have already taken up another AC21 satisfactory offer. Now, if your case gets adjudicated without RFE, the dilemma is what employer should you be working for. Ideally, you are supposed to be working for your sponsoring employer after getting GC, and if you don't, there could be suspicions on your intent, which may or may not cause problems down the line. filing AC21 proactively may help in this case.
- Similarly, say your previous employer revoked your I140 after you moved and USCIS denied your I485 without RFE\NOID (Notice of intent to deny) based on I140 withdrawal, filing AC21 proactively MAY again help more that if you did not, when you appeal.
- MAYBE you may not get a RFE for Company Eval, if you had filed close to your adjudication dates.
- Sheela Murthy recommends applying for AC21 proactively.

There are lot of cases in this forum who did not file AC21 proactively (they filed during RFE) and still got their GC without any issues.

Your PD should become current soon. So stick with your own employer if you can for few months or atleast till your wife gets her EAD and then jump.

 

[NYImmigrant]

Thanks for the comprehensive response Avi101. This is very helpful advice.

---- I140 has to be approved (not sure from your post)

My I-140 was approved before I filed my I-485 (back in 2003). I filed 485 is mid-2003. Had an interview Jan 2006. Tried if I could push my wife's paper work thorugh but couldn't as PD not current.

---- Your PD should become current soon. So stick with your own employer if you can for few months or atleast till your wife gets her EAD and then jump.

I really hope my PD becomes current in the next bulletin. I was thinking of sticking with my current employer for some more time but I realized I am killing my career and they are pastering me to move from my current location.

Second thing is the offer I am getting right now, don't come out so often. So I am in a limbo.

 

[avi101]

NY
I understand your frustration.. good luck with whatever decision you take.

 

[neocor]

Let me give you very specific answers to your questions.

Hello Gurus,

I am on a 7th year extension of my H-1B. I have my 2nd EAD but not using it as my wife is on an H-4 and we couldn't file her 485 due to retrogression.

Its not a question of you using the EAD or not. For your case you have both EAD and H1. The moment your H1 expires you will be on EAD.

I am expecting my PD (March 15, 2001/India/EB3) to be current very soon.

All the best

I got a very good offer for job and am trying to find.

I suggest take it.

1. Can 1 do H-1B transfer in the 7th year ?

Yes absolutely you can, as long as the employer who did the labor does not withdraw it.

2. Should I send AC21 letter even if using H-1B ? (I think yes)

Yes do send it.

What other options do I have ?

I think thats about it, you really have no option other than going for the H1 transfer in order to keep you wife in status.
Its better do everything, H1 transfer, AC21, EAD, the whole nine yards.

neo

 

[shernil_s]

Hi NY,

I am in the same situation as yours but my PD is Jan 2002. I have a question for you.

I think changing your employer will create a problem. My lawyer told me that filing Spouse's 485 has to be done with the same employer who filed your application.

In your case who is going to file I485 for your wife? your new employer / old one

 

[ufo2002]

Keeping H1B and EAD???

OK, several ppl here have mentioned just keep extending H1B while also keeping EAD. Isn't that rather an oxymoron?
H1B = Non-immigrant visa
EAD = Adjustment of status from non-immigrant to immigrant.

Is it guaranteed that USCIS will allow 7th year extension on H1B if they are fully aware of your status as EAD?

The following situation is true, and is from one of my friends (not the wife marriage situation but you can see the pain):
Prior to filing for I485, my friend submitted himself and his whole family into the application. Just before 1st EAD was confirmed, his wife gave birth to a new child (and this happened back in home country). The newborn is therefore not a US citizen and also not in the original I485 application. My friend was told by USCIS that his newborn has to file under FB Family category (and we all know how badly retrogressed that category is), and cannot come in under any H-dependent visa.

So now my friend's family is living in two countries. He continues to work here but the wife and kids are back in home country.

 

[shernil_s]

Could some one explain me about the rules to file spouse's 485, In case, If i decided to change the employer

Hi NY,

I am in the same situation as yours but my PD is Jan 2002. I have a question for you.

I think changing your employer will create a problem. My lawyer told me that filing Spouse's 485 has to be done with the same employer who filed your application.

In your case who is going to file I485 for your wife? your new employer / old one

 

[shernil_s]

Hallo Friends...waiting for your reply...

 

[avi101]

Hi NY,

I am in the same situation as yours but my PD is Jan 2002. I have a question for you.

I think changing your employer will create a problem. My lawyer told me that filing Spouse's 485 has to be done with the same employer who filed your application.

In your case who is going to file I485 for your wife? your new employer / old one

Either your lawyer is wrong or you have not clearly understood what he\she said.

I485 is your application. You need not be with the same employer. You could have switched employers (AC21) and can still apply for spouse's 485.

You are the one who applies for 485. For your own application, you need employer sponsorship. Spouse application goes as a dependent on yours. Employer has nothing to do with it.

 

[avi101]

OK, several ppl here have mentioned just keep extending H1B while also keeping EAD. Isn't that rather an oxymoron?
H1B = Non-immigrant visa
EAD = Adjustment of status from non-immigrant to immigrant.

Is it guaranteed that USCIS will allow 7th year extension on H1B if they are fully aware of your status as EAD?

The following situation is true, and is from one of my friends (not the wife marriage situation but you can see the pain):
Prior to filing for I485, my friend submitted himself and his whole family into the application. Just before 1st EAD was confirmed, his wife gave birth to a new child (and this happened back in home country). The newborn is therefore not a US citizen and also not in the original I485 application. My friend was told by USCIS that his newborn has to file under FB Family category (and we all know how badly retrogressed that category is), and cannot come in under any H-dependent visa.

So now my friend's family is living in two countries. He continues to work here but the wife and kids are back in home country.

ufo:

H1B allows dual intent.

Having an EAD and using it are two different beasts. Having an EAD DOES NOT change your status. Using it does.
You need not even apply for EAD if you can be on H1B. But having EAD is good, in the sense that if you want to change jobs or something (say,you get laid off), its easier to get one on EAD.


Based on my understanding, this is what I think (the important thing is what status the primary applicant is in):
- If you friend i.e. primary is in H1 status and his wife (dependent) are in H4 status, he should be able to get his kid on dependent visa H4.


- Now, if he is in H1 and his wife in "AOS Pending status" i.e. she has used EAD, I think he should still be able to get his kid on dependent H4 status.

- Now, if he is AOS Pending status, his wife as a dependent automatically is in AOS Pending status (she can't be H4 as H4 depends on H1 and H1 is gone). Thats where the problem arises since the kid is outside US. They can't apply for kid's 485 since for that, the kid has to be in US. The only option left is Consular Processing. Whether it can go under Employment category, I don't know. My guess is it has to be Family based category.

More inputs, anyone?

 

[shernil_s]

Thanks Avi101 for your response...

My lawyer specifically told me that its an employment based visa, so primary applicant as well as dependent's application has to be filed by the sponsering employer...

Either your lawyer is wrong or you have not clearly understood what he\she said.

I485 is your application. You need not be with the same employer. You could have switched employers (AC21) and can still apply for spouse's 485.

You are the one who applies for 485. For your own application, you need employer sponsorship. Spouse application goes as a dependent on yours. Employer has nothing to do with it.

 

[NYImmigrant]

Thanks Avi101 for your response...

My lawyer specifically told me that its an employment based visa, so primary applicant as well as dependent's application has to be filed by the sponsering employer...

Your employer is simply tring to buy time so that you keep working for your employer. Spouse 485 is your application and has nothing to do with employer. Your application however is filed by the employer and you are dependent on the employer for sure.

 

[NYImmigrant]

Thanks Avi, Neo, UN,

All of you guys have been a lot of help. I will weigh the options and keep you posted. Got my fingers crossed on PD becoming current. Let's see.

 

[gcstrat]

Some thoughts

NYImmigrant

I think you should maintain your H-1. Using EAD causes you to lose your H-1 and therefore it causes your wife to lose her H-4 as well. As I understand, you can transfer your h-1 in your 7th year.

Since you will be switching jobs on H-1, you do not have restrictions that the job has to be "same or similar". Also, you may have to re-do the labor, I-140, though you may retain the PD of your earlier filing. Consult a good lawyer for this switch and understand the pros and cons.

Also, a suggestion, can the company your are switching to wait till your PD becomes current? You may be surprised, they may be willing if they have some handle on the time-frame. You can say, let's wait for max say 2 months, if nothing happens, I switch on H-1. If we are lucky, I get my GC and all these questions are moot.


Regards
GCStrat