I 485 pending, j1-h1-EAD issues

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murlakshmi

Registered Users (C)
I am working at a VA, now finished 1 1/2 of my waiver on H1. VA filed for NIW EB2 + I 485. Can I get an EAD, can I use EAD to moonlight in my own personal time! will any of the above mess my H1 status?! My attorney is strongly advising not to apply and use EAD in these three years! It seems this is a grey area! my colleague same situation different lawyer says no worries, you can use EAD after satisfying 40/week to the VA! WHICH is true?!
 
Get a second H-1

I have heard that using EAD during your 3 yr waiver may not be wise.

If you want to moonlight get another H-1 for it.
 
J1 waiver law

The J1 waiver is based on one spending 3 yrs in H1b status. IF you get AND USE your EAD then that will cancel your H1b status and you will not have fulfilled your 3 yr h1b term. You cannot even be 1 month short of it otherwise you will have troubles later on. There is nothing grey about this rule. Your frineds lawyer is mistaken.
 
EAD,J1+H1+ 485 pending

Thanks guys! NOne of the locum companies are willing to do H1 for moonlighting! Guess stay put for another 1 1/2 years!
 
J1 and I-485

How did your lawyer let you submit I-485? According to Pederson's website, J1 can file I-140 but not file I-485 before 3 years. The law seems very clear about J1. My husband is J1. We looked into this.
 
As J1 waiver doc, you can submit a NIW+I485+EAD before the 3 years are up. However, you can't use the EAD or AP. Once you use EAD or AP you change your status from 'H1b non-immigrant' to 'adjustee'. When USCIS at a later stage looks at whether you fulfilled your 3 year sentence, they only count time spent in 'H1b status'. So if you end up a day short, your I485 will be denied and you would have to start all over again (new waiver, new 3 years).

Your friends attorney is either mistaken or your friends case is somewhat different. Now, you could say: 'How will USCIS ever know that I used EAD, it is not like they get notified or something'. At the I485 stage you have to submit tax records, if there are W2s from employers you didn't have an H1b for, you are in trouble.

If you want to moonlight you will need another H1b (many VA docs have that. they work 5/8th for the VA and 3/8th for an academic center).
 
hi

hi all,
I have a question. I am on H1b and my wife is on H1B as well.My perm got approved only recently, so I was forced to apply for NIW EB2 for physicians so that I can apply for 485 and EAD and AP etc.My wife also works in an underserved area . Now she can not file 485 because of retrogrssion. However she can apply for NIW I140 and extend her Hi status. My question is she has got fellowship in june 2006 and she does not haveenough H1 to do that as her HI expires in Jan 2007. Can she apply for I 140 NIW through the current job and if gets approved, she can extend her H1 for 3 years and resign from the current job and then transfer the 3 yr H1 to do fellowship. Is it possible /valid? The reason is we don't want to use the EAD until my I140 gets approved :confused: .
Hadron, Ji victiom , other gurus, Any thoughts?
 
I don't know the answer, but there is no harm speculating:

- She has 6 years to complete the 5 years in HPSA.

- If you file I485 concurrent with a NIW, you get a 'request for evidence' after 2 years or so where you have to proove that you are actually working in the sponsored practice location. If I remember correctly, this RFE is a 3 page document. The first page has to be sent back with the evidence of full-time work/employment. The second and third page have to be sent in after 5 years are complete.
I don't know how it works if you don't file concurrently (e.g. due to retrogression, or because you want to use the NIW-I140 for consular processing at the end of 5 years). I don't think USCIS actually sends you an RFE to document your full-time employment, I am under the impression that the RFE is tied to the pending I485.
So, if that is the case, it would be possible to do what you suggested. Use the NIW I140 as a tool to extend her H1b until YOUR GC comes through without actually providing the service the NIW was approved for.


(Here is the problem with this kind of 'creative' use of the NIW: A girl in NY got herself a NIW approved in 1998 for a practice in the styx BEFORE she started residency. She then did her radiology residency on EAD and moved to practice in Florida. She never actually provided primary care in the HPSA location she was sponsored for. When USCIS found out about it, they tore her a new one and essentially invalidated every status she ever had. You can be 'creative' in using NIW petitions and the like, but you have to be careful that you don't wake a sleeping dog there. If they think you consider them to be stupid, they can get really nasty.)
 
Hadron, I would like to believe you BUT...

Hadron, I am very interested in when a J1 can submit I-485. My details are in another thread "J2-O1-I-485". From one of the posts I received from J1victim and the Perderson link below, it appears that J1 can not submit I-485 before the end of 3 years. Please clarify as your earlier statement suggests that J1 can file I-485 before completion of 3 years on H1.

For former J1s on waiver job, there is clear direction from USCIS that they can't file an I-485 (except the I-485 from that of NIW Physician in underserved area) until they have completed 3 years in H1 status in underserved area. and they can't apply for AOS (I-485) until they have been granted a waiver. Q31 on pederson's website:

http://www.usvisainfo.com/object/pdf/j1/j1faqs.pdf

Thanks a lot.
 
Unless NIW

That same document on question 31 answer clearly stated 'unless NIW petitioner'. I485 can be filed prior to 3 yrs if it is a NIW case. Only thing there is the primary EAD can't be used prior to spending full 3 yrs in H1b status. The spouse is free to do so.
 
Anytime for NIW

I agree one can submit 485 anytime during the 3 yr waiver period.

For other I-140 approvals (EB-1), will have to wait till after the 3 yr period.
One option can be for you to file NIW now and use EAD for spouse if needed and the switch it your other I-140 approval. I would recommend checking with a lawyer about this.
 
> I agree one can submit 485 anytime during the 3 yr waiver period.
>
> For other I-140 approvals (EB-1), will have to wait till after the 3 yr period.

This is how I understand it. J1 can file I140-NIW+I485 even before starting waiver job (may be important if spouse is on J2-EAD for residency and wants to avoid getting her own J1).

Risking to get boring here: File I140 NIW the same time that you file for your waiver paperwork. That way, you can secure a good priority date in case you get bitten by retrogression. Filing I485 can be done at that time, or later, depending on the individual situation. VA might give you a hard time about giving the support letter for NIW early on. THEY SOMETIMES WANT TO STRING YOU ALONG and drag out the filing of NIW so they can squeeze a new 5 year committment out of you at that time. Medical administrators are largely spineless immoral crooks (regardless of whether they are employed by the federal goverment or by a private entity). They will use any opportunity they have to squeeze more revenue out of a commodity (such as a physician).
 
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J1, H1, EAD, 485 pending

murlakshmi said:
I am working at a VA, now finished 1 1/2 of my waiver on H1. VA filed for NIW EB2 + I 485. Can I get an EAD, can I use EAD to moonlight in my own personal time! will any of the above mess my H1 status?! My attorney is strongly advising not to apply and use EAD in these three years! It seems this is a grey area! my colleague same situation different lawyer says no worries, you can use EAD after satisfying 40/week to the VA! WHICH is true?!
Click to expand...

Any one familiar with Crinin memo regarding H1 status and use of EAd and Ap while I 485 is pending!

He says that if you are on H1, you can apply for EAD and AP for extra work in open market and travel on AP. Youe status as H1 is preserved! As long as you are working with the original employer who should not have any problem! But the problem is does not specify anything about H1 b serving J1 waiver?! Do you guys know of any memo, regulation or statute saying while you are serving J1 waiver on H1 dont apply and use EAD or else you lose the H status

Thanks for help
 
murlakshmi said:
Any one familiar with Crinin memo regarding H1 status and use of EAd and Ap while I 485 is pending!

He says that if you are on H1, you can apply for EAD and AP for extra work in open market and travel on AP. Youe status as H1 is preserved! As long as you are working with the original employer who should not have any problem! But the problem is does not specify anything about H1 b serving J1 waiver?! Do you guys know of any memo, regulation or statute saying while you are serving J1 waiver on H1 dont apply and use EAD or else you lose the H status

Thanks for help
Click to expand...

I forgot to give you the details of Cronin (5-16-00) memo
http://www.shusterman.com/cronin51600.html
Let me know what is your take on it?!
 
> However, an H-1 or L-1 nonimmigrant will violate his/her nonimmigrant
> status if s/he uses the EAD to leave the employer listed on the
> approved I-129 petition and engage in employment for a separate employer.

You and I read this sentence and think that the reverse sentence of this must also true:
'an H-1 or L1 nonimmigrant will NOT violate his/her nonimmigrant status if s/he uses the EAD to work for an additional employer WITHOUT leaving the primary employer.'

Unfortunately, in the eyes of the law, ketchup is a vegetable. So I would not bet my future on my own interpretation of reading such a memo. A good attorney should be able to pull up some administrative appeals office decision where someone got screwed by doing that, using EAD while in H1. Every recommendation I have seen so far was to get a separate H1b for moonlighting employment during the waiver period.
 
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