H1 to EAD to H1

I

imli

Registered Users (C)
Hi all,

I need your advice or suggestions for my case.

I have applied in EB2-NIW categogy with concurrent filing of 485, 131, EAD in last july-august season. My I-140 and I-485 are pending in Texas but I received my AP and EAD.

I am now in academic H1 (assistant professor) and not using my EAD currently.

I got a better job in a company and I would like to join using my EAD in May/June (the comapny can not wait longer). The company said that they can submit a H1 application for me (before april 1st) which will be effective from October.

Now my question is once I use EAD (for May to October) based on my pending I-140 and I485, can I go back to H1 in october? And if it is possible to go to H1 in october, can I renew the EAD after one year when the current one expires?

I would like to stay in H1 until my I140 approved and at the same time I do want to keep EAD as a safeguard. What is the rules and restrictions?

(Also, can I submit a LC to convert my EB2-NIW to regular EB2 or I have to submit a whole new I140 application? In that case, can I link my new EB2 I-140 application to already submitted pending I485 ?)

Thanks a lot.
 
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This is a pretty complex situation. You definitively want to get a lawyer before making any decisions.

1. Even if the company submits an H1 for you since they are for-profit they will be subject to the quota, so there is no guarantee you get an H1 (but chances are better since you are in the less competitive MS/PhD bracket).
2. Assuming you get the H1 you can leave the US and re-enter in H1 status. Thats ok.
3. Renewing the EAD is no problem as long the I-485 is pending.
4. You can't convert the I-140, instead just submit a new one.
5. If the new I-140 gets approved or the old I-140 gets denied you can try to re-link. There are no forms and at least NSC is known to stubbornly ignore any letter you send them about relinking, so you might have to file a new I-485 or ask to re-open/re-consider it if you can't (India/China) after they denied it.
 
Thank you very much, nscagony.

If I can not get H1, then I will continue to work with EAD. That's not a problem. I am more interested to know if I can do this interchange (academic H1-EAD-industrial H1 and simultaneously keep EAD active).

If I get H1, then I will keep renewing it every year until it maxed out and in the mean time request my company to process LC based green card. I know, I 485 will be tough if I file a whole new application since India is now under retrogression, but I guess USCIS will do the same that they did in last july-august at least once in coming five-six years.

Also, do I need to get out of US and re-enter with new H1 after I get it in october in order to change my status from EAD to H1? Or I can just request HR of the company to let USCIS know that I am working with H1 from october (not using EAD anymore). How does it work?
 
If you are in H-1 status, using your EAD at any point will invalidate that status. (Note, using it, not applying for and obtaining it.) So if your new company is able to sponsor you with an H-1B, you cannot use your EAD. Your question is whether you can renew your current one if you are in H-1B status (via the company). As nscagony said, yes you can, if you want it for backup purposes, but don't use it if you want to keep your H status. As long as you renew it but place it in your drawer and not use it, you'll be okay status-wise.

Keep in mind that one of the benefits of your NIW petition is that it is employer-independent; you are not tied to any one employer. Applying for a new I-140, while easier to get approved, will probably tie you down with a specific employer for at least a while.
 
jk0274 said:
If you are in H-1 status, using your EAD at any point will invalidate that status. (Note, using it, not applying for and obtaining it.) So if your new company is able to sponsor you with an H-1B, you cannot use your EAD. Your question is whether you can renew your current one if you are in H-1B status (via the company). As nscagony said, yes you can, if you want it for backup purposes, but don't use it if you want to keep your H status. As long as you renew it but place it in your drawer and not use it, you'll be okay status-wise.

Keep in mind that one of the benefits of your NIW petition is that it is employer-independent; you are not tied to any one employer. Applying for a new I-140, while easier to get approved, will probably tie you down with a specific employer for at least a while.
Click to expand...


Thanks jk0274.
Actually, I have to use EAD since I have to start in the company from May1 or so. Now, I am in academic H1 which can not be transferred to Industry. Even if the company files a H1 for me now, it will not be effective before october 1st. So I have to use EAD from May 1st to October 1st.

Now if my H1 approved, then can I use H1 from october 1st? or using H1 from october 1st will invalidate my EAD instantly? or once I start using EAD, I can not go back to the H1? And if I go from EAD to H1, can I renew the EAD for the coming years? These are my questions right now. Thanks a lot!
 
EAD does not get invalidated... It is H1 that gets invalidated if used on while you are on H1 status.

Now the question is, if you use EAD until October 1st, does this hinder your "to be approved" H1 visa?
 
Yes you are right. But if you talk in terms of legal terms, You will not have a valid H1 until October 1st, because the start date would be only October 1st. If a person moves to H1 on October 1st (file a new I-9 on October 1st with a new H1) he or she should be fine. [When a H-4 person can revert back to H-4 after using a EAD, why not a H-1]
 
I've a related question here. If someone switches from academic H1 to profit H1b, does that invalidate academic h1? or is it valid till the expiration date?
Is it necessary to join the company from Oct 1? or someone can join anytime (may be next year) if someone has approved profit H1b?
Please answer these questions as these are really imp for me.
Thanks
 
You can have 2 H1s in parallel but you have to comply with the terms of both, so you need to amend the academic one and reduce the time etc.
 
eb2007 said:
I've a related question here. If someone switches from academic H1 to profit H1b, does that invalidate academic h1? or is it valid till the expiration date?
Is it necessary to join the company from Oct 1? or someone can join anytime (may be next year) if someone has approved profit H1b?
Please answer these questions as these are really imp for me.
Thanks
Click to expand...
Yes, the new H1 will be effective now on (from the start date of new job). before that older one remains valid if there is an overlap. it is similar to going from one H1 profit to another if someone changes job. Only difference between acad-H1 and industrial is that there no quota. however, the total length will still be 6 yrs. The time spent on acad-H1 counts towards the total 6 yrs.
you have to start working for the company (be on the payroll) within 90 days from the visa issuing date (Oct 1 in this case) if you are in the US.
 
imli said:
Now if my H1 approved, then can I use H1 from october 1st? or using H1 from october 1st will invalidate my EAD instantly? or once I start using EAD, I can not go back to the H1? And if I go from EAD to H1, can I renew the EAD for the coming years? These are my questions right now. Thanks a lot!
Click to expand...
YOu can go with H1 from Oct 1, but you MAY not get I-94 with H1 approval as your current status is not non-immigrant anymore once you used EAD. They may issue I797 w/o I-94 and you have to travel to get H1 stamp.
 
skvadivel said:
Can we have use 2-H1s simultanously, I do not think so..
Click to expand...
I did not say that. What I meant is that your previous H1 is valid as long as you are continuing to work for the previous employer (given that it hasn't expired) and do NOT start the new job. however the issue date of the new H1 could be before the current one ends. As soon as you start the new job, the new H1 will be effective.

By the way, in certain cases you can obtain a simultaneous 2nd H1 for a part time job.
 
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