Have EAD As Derivative and Applying for new H1b(what happens to my pending I-485)

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helpless4now

Registered Users (C)
Hi,

I am thankful to all for their valuable answers to my previous posts.

I am having EAD as Derivative applicant which is valid till 2010 and my H4 is expired.Due to some personal reasons I am applying for H1b this year.My employer is telling that if I apply for H1b, my I-485 and EAD will be cancelled and my status will be changed to H1 and I will be getting new I-94.My questions are

1.)will I my I-485 and EAD(which I got as derivative applicant) be invalid if I am using H1?
2.)If the scenario I-485,EAD will be invalid if I apply for H1 is true- will I-485,EAD be invalid once I apply for H1 on April2009 and will I be out of status?
2.)H1 will be valid from october2009.can I make my H1 active from Jan2010 and can I work on EAD till Jan2010?

Please solve my doubts because I don't have any idea about immigration rules and I am looking into these forum and I am getting my self aware of these immigration rules now a days.

Thanks,
helpless4now
 
helpless4now said:
My employer is telling that if I apply for H1b, my I-485 and EAD will be cancelled and my status will be changed to H1 and I will be getting new I-94.
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That is absolute nonsense. You will get a new I-94 and you will gain H1 status, but your I-485 and EAD will continue to be valid as long as you still have the same legal relationship with the primary applicant (as the spouse or child) and the primary I-485 is not canceled or denied.

I think your employer is either grossly misinformed, or they simply don't want to spend the time and money to file the H1.

H1 will be valid from october2009.can I make my H1 active from Jan2010 and can I work on EAD till Jan2010?
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Do you plan to work in another job with the EAD until the end of 2009, and then switch to the H1 job in Jan 2010? You can do that. But if you're going to work in the H1 position anyway in Oct. 2009 without using the H1, that makes things very fuzzy ... I don't think anybody does that and I don't know what the legal effect would be. Why bother with such games? The EAD will remain valid anyway regardless of your H1 status. And you should renew the EAD anyway even if you take H1 status, because in this economy you never know how long your job will last.
 
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In other words, note the following:

1- EAD doesn't confer any status, it's just a document.
2- Obtaining H-1B status while having a pending I-485 doesn't cancel the I-485 application.
3- Using a valid EAD while in H-1B status does invalidate your H-1B status. So if your most recently obtained I-94 is designated H-1B, and you use an EAD for work, you will be out of H-1B status (but will still be legally in the US, and legally working, as long as your I-485 is pending and your EAD is not expired).
4- Merely applying for an EAD and obtaining it does not affect your H-1B status, only using your EAD to work does so.

So in your situation, the reason things are confusing is that you say you may obtain H-1B status with a validity date of October 2009. You will receive a new I-94 when your petition/application is approved. However, if you still use an EAD to work after you get your H-1B I-94, you will no longer be in H-1B status. In order to regain status, you will have to file for an H-1B extension. I don't believe that you can just decide to stop using your EAD one day in January 2010 and "go back" to using your H-1B status, because you can't just "decide" to regain status - you must file for an extension whereupon you'll receive a new I-94 and then be back in H-1B status (as long as you don't use your EAD again after that).
 
jk0274 said:
I don't believe that you can just decide to stop using your EAD one day in January 2010 and "go back" to using your H-1B status, because you can't just "decide" to regain status -
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I think the OP is talking about delaying the start of H1 status until January 2010, rather than entering H1 status then using the EAD for a few months and going back to the H1.

I believe that is possible if one delays working in the H1 job. For example, an F-1 student who works in an internship position with their OPT from May to November then switches to the H1 job in December. However, it is possible that doing a delayed change of status like that would either require the employer requesting an effective date in December on the H1 application instead of the usual October 1st, or the employee leaving the US and returning with an H1B passport stamp. It is not a straightforward situation and I am curious about why the OP wants to delay the H1 until 2010.
 
You're right, Jackolantern, if the OP can actually delay the start date on the H-1B. But in the initial post, point 3 is "H1 will be valid from october2009.can I make my H1 active from Jan2010 and can I work on EAD till Jan2010?" - so it appears that the start date is already set for Oct 1, which is what I was going on - but you're right - if the OP can delay the start date, that would be the ideal solution.
 
Than you all very much for the answers.
According to your answers I understood that employer really can't do any thing that effects my I-485 status until unless primary applicant do anything and I will be getting new H1 and I-94 and my I-485 will be running on separate track.
Jackolantern said:
I am curious about why the OP wants to delay the H1 until 2010.
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I wanted to delay H1 till oct2010 because in this economy it will be easy to get a job on EAD
 
Thank you all for your responses.I talked to my employer and he said that gaining H1 status shouldn't effect my I-485/EAD but the problem is he is asking for my husband's H1,most 3 recent pay slips(which I can't provide).Do they really need all my husband's documents for filing H1 for myself.
 
As far as your husband is concerned, they don't need his immigration information to sponsor you. They are not hiring him or paying to get an H4 for him. These people don't know what they're doing regarding immigration and they will mess up your H1 with their incompetence. Why don't you just go ahead and use the EAD and forget about the H1 ... unless you are worried about your marriage falling apart (a divorce would cancel your I-485). Because of the H1 lottery, you don't know if you will get an H1 anyway.
 
Jackolantern said:
As far as your husband is concerned, they don't need his immigration information to sponsor you. They are not hiring him or paying to get an H4 for him. These people don't know what they're doing regarding immigration and they will mess up your H1 with their incompetence.
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This is not correct. They do have a legitimate need for them.

If they're doing a change of status, USCIS may legitimately ask if the alien has been maintaining valid H4 status. An H4 holder can fall out of status in one of two ways - working without authorization, or having the H1 holder spouse fall out of status, by not getting paid. Hence, the paystubs.

I do agree with you that the EAD is a much better way to go.
 
Jackolantern said:
forget about the H1 ... unless you are worried about your marriage falling apart (a divorce would cancel your I-485). Because of the H1 lottery, you don't know if you will get an H1 anyway.
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I don't know whether I will get selected in the lottery but I have to file for H1 because my I-485 will be cancelled if divorce is filed so I wanted to go on H1 with out using EAD/I-485.
 
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