H1B while I485 pending - yes / no

G

gvaknin

Registered Users (C)
All,

I have a question and hope you can help. My H1B will expire on 8/31/2004, and my I485 ND is 1/9/2003. At the same time, I have an EAD that will not expire until 3/18/2005.
Would you suggest I pursue an extension of the H1B (for 3 additional years) or just keep on renewing the EAD when need to, and continue to work as is?
Also, if I extend, my GC attorney told me that once H1B is submitted, and in case our I485 is denied, we can still work until H1B is approved and we are not going to be out of status at any point. Is it accurate? my company seems to think that in such case, if the first H1B is expired prior to approval of extension, I will not be able to work and they will need to terminate my employment. Thoughts and ideas are greatly appreciated,
 
gvaknin said:
All,

I have a question and hope you can help. My H1B will expire on 8/31/2004, and my I485 ND is 1/9/2003. At the same time, I have an EAD that will not expire until 3/18/2005.
Would you suggest I pursue an extension of the H1B (for 3 additional years) or just keep on renewing the EAD when need to, and continue to work as is?
Also, if I extend, my GC attorney told me that once H1B is submitted, and in case our I485 is denied, we can still work until H1B is approved and we are not going to be out of status at any point. Is it accurate? my company seems to think that in such case, if the first H1B is expired prior to approval of extension, I will not be able to work and they will need to terminate my employment. Thoughts and ideas are greatly appreciated,
Click to expand...

I have renewed my H1 B as well last month. Mine expires end of Nov this year. My lawyer did not have any issues about it so it shoud not have negative affect in my view. I believe it is a backup in case 485 is denied (hope that never happens)..

I am hoping that applying for H1 B might trigger an approval of my 485 since they will know that I am still working with same employer.

But who knows how this will play out. The H1 B renewal may just go to some other officer who doesnt have a clue about my 485.

RD Oct 15, 2002
ND Oct 31, 2002
FP1 Dec 5, 2002
FP2 Jul 15,2004
 
gvaknin said:
All,

I have a question and hope you can help. My H1B will expire on 8/31/2004, and my I485 ND is 1/9/2003. At the same time, I have an EAD that will not expire until 3/18/2005.
Would you suggest I pursue an extension of the H1B (for 3 additional years) or just keep on renewing the EAD when need to, and continue to work as is?
Also, if I extend, my GC attorney told me that once H1B is submitted, and in case our I485 is denied, we can still work until H1B is approved and we are not going to be out of status at any point. Is it accurate? my company seems to think that in such case, if the first H1B is expired prior to approval of extension, I will not be able to work and they will need to terminate my employment. Thoughts and ideas are greatly appreciated,
Click to expand...

It all depends on whether you "used" your EAD. Sadly, its next to impossible to get a consistent definition of "used" from the service centers. One clear example is if you get a side job. The other, a bit less clear, is if you leave and re-enter on AP, then your H1B is toast, and you can only work on EAD. (There has been some reports where people still used their H1B, I believe they just slipped through the cracks, and I hope they don't get in trouble at Naturalization, when they look back on your status history)

Here is one approach I heard (I can't vouch for its accuracy) :
Stop using H1B as soon as you get EAD (stops your H1B clock)
If I485 is denied--usually its not outright denied, your lawyer gets notification of intent to deny, file motion to reopen immediately, and it is believed by at least some lawyers that this action keeps your EAD invalid.
Now, if you think that the chance of motion to reopen fails, then apply for H1B right away, so that by the time they tell you that your i485 is still denied, your H1B is approved, and you still have a lot left on the clock.

Now, I can't vouch for all this as fact, It DIDNT happen to me, I DONT know any real person that this happened to, its merely an observation based from many months (even years) of reading immigrants' plights on various forums. I hope it helps, and you should always trust your lawyer before you trust us :)
 
I believe you need either a valid H1B (or an extension pending) or an EAD at all times until GC approval to continue working. EAD approval is tied to the 485 application and would be voided if the 485 is unfortunately denied, so it seems better to have a valid H1B in addition to the EAD. Of course as SirZ pointed out the H1B becomes invalid if you re-enter on AP.

I also believe H1B extensions can only be one year at a time once you are in the 485 stage; 3 year increments are when country-specific priority dates are not current.

My company attorney filed I-485 in Apr 04 and got the A#. Attorney also filed for the 8th year H1 extension including my A# on the application as EAD approval did not come through before expiry of 7th year H1. Now both EAD and 8th year extension have been approved. Attorney says this is my last H1B extension and I would need to use EAD from now on.

Hope this helps.
 
One of my friend has similar issue.
His lawyer told him to save time on H1B , if you have already filed 485, better to use EAD and save time on H1B. The reason is in wrost case if 485 gets denied, the company can extend ( use) the remaining time on H1B, note this won't be new H1B and does not effect with yearly quote permitter. So they are still safe for working the company.
In current time as 485 is taking for ever, it was advised to save your H1B time
 
thanks all for your reponses. From what I gather, it's better to be safe than sorry, hence should take the conservative approach (or the way my attorney says: super conservative way), and get the H1B done. To my question, my attorney said that she is not seeing denials, if anything, she is seeing many more approval from NSC, and it looks like they are ramping up. She would not elaborate or provide more details. Besides, she adds, she does not see a reason for USCIS to deny the case, as it is going through some security checks, and approvinig the case, and it's mostly administrative activity. My HR department has started working on it, and we will submit the request probably in the next 2 weeks. I'll have to see how long does it take them to approve such a case, thgouh.

Thanks all, and have a great weekend,

best,
 
gvaknin,
My employer stop renewing my H1B since filing I485. I'm using my EAD and renew it every year.
just curious, did your lawyer charge you for this type of consulting?
thanks.


gvaknin said:
thanks all for your reponses. From what I gather, it's better to be safe than sorry, hence should take the conservative approach (or the way my attorney says: super conservative way), and get the H1B done. To my question, my attorney said that she is not seeing denials, if anything, she is seeing many more approval from NSC, and it looks like they are ramping up. She would not elaborate or provide more details. Besides, she adds, she does not see a reason for USCIS to deny the case, as it is going through some security checks, and approvinig the case, and it's mostly administrative activity. My HR department has started working on it, and we will submit the request probably in the next 2 weeks. I'll have to see how long does it take them to approve such a case, thgouh.

Thanks all, and have a great weekend,

best,
Click to expand...
 
My company did not want to fully fund it so they maid me pay the $185 the the ee must pay, and 1/2 of the app. $700 of the rest. total out of pocket cost for me is about $500. The problem is that my wife needs it too, so it's double the costs..... :mad:
 
gvaknin said:
My company did not want to fully fund it so they maid me pay the $185 the the ee must pay, and 1/2 of the app. $700 of the rest. total out of pocket cost for me is about $500. The problem is that my wife needs it too, so it's double the costs..... :mad:
Click to expand...

This money is for the lawyer fees ?
Or is it the fees for the H1 application?
 
good question but I'm not sure. I think this is the application fee paid to the attorney, and then 1/2 of the money paid to the USCIS.
BTW, one question, if our I485 is rejected, is our EAD becomes invalid retroactively since I485 RD / ND? hence have a problem working while in legal status? My guess would be no because there would be no way for us to know if our case would have been rejected or not, but then again, with USCIS rules, go figure. Any idea anybody?
I am not anticipating any problems with approving our case, just want to be conservative.
thanks all,
 
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I also believe H1B extensions can only be one year at a time once you are in the 485 stage; 3 year increments are when country-specific priority dates are not current.
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Can anyone confirm whether this is true? I am in 485 stage and working with my lawyer on re-newing my H1B, he said the extention will be valid for another 3 years. Is my lawyer correct?

Thank you.
 
s_jojo said:
Can anyone confirm whether this is true? I am in 485 stage and working with my lawyer on re-newing my H1B, he said the extention will be valid for another 3 years. Is my lawyer correct?

Thank you.
Click to expand...

I believe your lawyer is correct. From what little I know, the one year deal starts with the 7th year.
 
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