H1B while waiting for GC EAD?

[VivekWilson]

Hello,
So: I'm currently unemployed, but actively interviewing for jobs. I'm married to a US Citizen now, and my GC EAD (I-765) is a work in progress. The USCIS started my GC EAD processing about 3 months ago, so as per pessimistic processing times, I could wait for another 5-6 months before the GC EAD is approved.
In the meantime, I'm seeing my savings dwindle rapidly, and I'm getting worried.
I've been told that there is a loophole where a person in my position can indeed work while waiting for the GC EAD, not because it's legal to work, but because it's NOT illegal to work, if that makes sense. But few employers are willing to take that route. Eithet they don't believe the same, or they simply don't want to take such risks.
Someone offered me an alternative yesterday. She suggested that her company could initiate a H1B Visa for me, and thereby get me employed right away. I like that idea, but I'm not sure of long-term consequences of that:

01. Will I even be able to file for a H1B while my GC EAD is being processed?
02. Will that void my GC EAD processing, already underway for 3 months by now?
03. How will this affect the other marriage related change of status paperwork, like I-485, I-130 & I-131?
04. If, assuming the H1B filing will impact the GC EAD, would I be able to file for it in the future without having to stop working again?

I'm extremely confused about the situation. Any advise would be greatly appreciated.

Thanks.

 

[newacct]

I've been told that there is a loophole where a person in my position can indeed work while waiting for the GC EAD, not because it's legal to work, but because it's NOT illegal to work, if that makes sense.

No, that does not make sense. If you are not in a status or situation that authorizes work, and you work, that is unauthorized employment. Unauthorized employment does not affect your Adjustment of Status (I-485) application because the bar to AOS for unauthorized employment does not apply to people in the Immediate Relative category (spouse, parent, or unmarried under-21 child of US citizen). See 7 USCIS-PM B.6:

As previously discussed, the INA 245(c)(2) and INA 245(c)(8) bars to adjustment do not apply to:
Immediate relatives;

And 7 USCIS-PM B.8(B):

Certain adjustment bars do not apply to an immediate relative, including the spouse or child (unmarried and under 21 years old) of a U.S. citizen, and the parent of a U.S. citizen older than 21.

An adjustment applicant applying as an immediate relative may be eligible to adjust status even if:
The applicant is now employed or has ever been employed in the United States without authorization;

But that does not mean it's not illegal.

But few employers are willing to take that route. Eithet they don't believe the same, or they simply don't want to take such risks.

It's not about belief. It's about the I-9. Employers are required to have you fill out the I-9 on your first day of work, and present the documents within 3 business days. You do not have any set of acceptable documents for the I-9.

01. Will I even be able to file for a H1B while my GC EAD is being processed?

What do you mean by "file for an H1b"? The employer can file an H1b petition, and can also additionally request Extension of Stay or Change of Status inside the US. But EOS/COS can only be done if you are currently in status. Have you maintained your previous status until now? If you cannot do EOS/COS, then you do not go into H1b status unless you leave and re-enter the US on an H1b visa. But leaving the US will abandon your I-485 (unless you have Advance Parole; but even then, you would have to re-enter with Advance Parole, not with an H1b visa, since you did not have H1b status before leaving).

02. Will that void my GC EAD processing, already underway for 3 months by now?

no

03. How will this affect the other marriage related change of status paperwork, like I-485, I-130 & I-131?

no effect

 

[VivekWilson]

Thanks so much for explaining! That makes a lot of sense.
So, essentially: If I take work right now (NOT on a H1B), there are no consequences (at least in terms of rejection of the GC or GC EAD), since I'm married to a US Citizen. Still illegal though, right? So does it attract monetary fines or jail time? Since deportation seems to not be a result.

As for the H1B: So, I won't be able to get a H1B filed by an employer for me because I'm currently in the US. If I desperately want to work on a H1B, I'll have to leave the US, get an approved H1B stamped, and then return? Defeats the purpose of aiming for an H1B to get a job immediately then. I think I should not go that route. The GC EAD & GC might get approved in the timeline for that, too. So there's no personal benefit in getting the H1B, even if an employer offers.

The I-9: I did not know of this before. Is every employer in the US required to file an I-9 after a job offer? Even those who offer Corp to Corp or 1099 jobs?

 

[newacct]

So does it attract monetary fines or jail time?

Not for the employee.

As for the H1B: So, I won't be able to get a H1B filed by an employer for me because I'm currently in the US. If I desperately want to work on a H1B, I'll have to leave the US, get an approved H1B stamped, and then return? Defeats the purpose of aiming for an H1B to get a job immediately then. I think I should not go that route. The GC EAD & GC might get approved in the timeline for that, too. So there's no personal benefit in getting the H1B, even if an employer offers.

You can change to H1b status from within the US, but it requires you to be in status. Are you currently in status?

Also, cap-subject H1bs start in a given fiscal year (fiscal years go from October to September). So the earliest you can start for a given fiscal year is October 1, and the earliest the employer can file is April 1 (6 months before). Every year, employers race to file them in April before the cap is reached. So this year's cap-subject H1bs filings were closed a long time ago. You would have to wait until next April to file for a start of next October, unless you have a cap-exempt H1b.

The I-9: I did not know of this before. Is every employer in the US required to file an I-9 after a job offer? Even those who offer Corp to Corp or 1099 jobs?

All employers have to have new employees complete an I-9. They do not have to "file" it (unless they participate in E-Verify, in which case they have to enter the information into E-Verify), but they have to keep the I-9 in their records, and show current and past I-9s if the government comes to inspect. This is if you work as an "employee". If you work self-employed as an independent contractor, then you don't need to fill out an I-9. (They would ask you to fill out a W-9 to provide your SSN.)

 

[VivekWilson]

I understand the full picture now. H1B is indeed not an option for me.

And I missed answering this question the previous time: No, I don't believe I'm in status for the H1B now. The latest H1B approval I have is valid till Jan 2024, but I have been unemployed for almost 6 months by now. So I don't think 'renewing' that H1B will still be an option.

Thank you so much for explaining all this for me! You have answered everything I had thought of, and more. I truly appreciate your patience and willingness to share your knowledge.