I-485 pending, used EAD, can one apply back H1B?

[mogumogu]

Both my and my husband's I-485 are pending since last year. I'm the primary applicant and I'm on H1B. My husband used his EAD since he changed job for a couple of times. He has been worried about his status if we got denied (or if I died in an accident ). His new employer said they can sponsor his H1B. Our question is: can he apply for H1B after he used his EAD? Will it require he going aboard for a Visa? Will it affect his I-485?

Thanks a lot!

 

[Aakash28]

If you are the primary applicant and your spouse has already used EAD status - does'nt that automatcially invalidates your H1B and put you on EAD status too? Please some one correct me if I am wrong?

Your husband can apply back for H1B after using up EAD - if he has'nt used up his 6 years on H1B.

 

[tangohi]

No, husband using EAD does not invalidate her H1B. He will be able get H-1B only if you die or the application is refused/ withdrawn. He cannot change to H-1B once EAD has been used till the above happens. You can continue on H-1B though for full six years plus additional years of extension.

 

[fast_gc_seeker]

Both my and my husband's I-485 are pending since last year. I'm the primary applicant and I'm on H1B. My husband used his EAD since he changed job for a couple of times. He has been worried about his status if we got denied (or if I died in an accident ). His new employer said they can sponsor his H1B. Our question is: can he apply for H1B after he used his EAD? Will it require he going aboard for a Visa? Will it affect his I-485?

Thanks a lot!

Your husband cannot apply for H1B[or any other US visa] as his 485 is pending. He can send a letter to cancel his 485 and then his employer can apply for fresh H1.

 

[fast_gc_seeker]

If you are the primary applicant and your spouse has already used EAD status - does'nt that automatcially invalidates your H1B and put you on EAD status too? Please some one correct me if I am wrong?

Your husband can apply back for H1B after using up EAD - if he has'nt used up his 6 years on H1B.

absolutely wrong.

tangohi is correct.

 

[dyingforgc]

Your husband cannot apply for H1B[or any other US visa] as his 485 is pending. He can send a letter to cancel his 485 and then his employer can apply for fresh H1.

Poster's husband can apply for H1-B however to be qualified for that he needs to go out of US, come back with valid H4 (which I assume he has based on first posting). Thus, he will be converted back to H4 from EAD and then apply for change of status from H4 to H1. he can't apply for H1 being on EAD so EAD to H4 conversion is MUST to apply for H1.

 

[tangohi]

dying for gc is correct. No change from EAD to H1 .EAD-H4 AND H1 is possible although I knew of someone few years ago who was able to go from EAD-H1 without going thru H4. Don't know if that was an administrative error or not.

 

[dyingforgc]

dying for gc is correct. No change from EAD to H1 .EAD-H4 AND H1 is possible although I knew of someone few years ago who was able to go from EAD-H1 without going thru H4. Don't know if that was an administrative error or not.

That definitely could be an error from USCIS. USCIS book doesn't allow from pending immigration(EAD) to non-immigrant visa. Only way is what I mentioned to get back on non-immigrant visa from EAD and then apply for change of status to H1.

 

[tammy2]

That definitely could be an error from USCIS. USCIS book doesn't allow from pending immigration(EAD) to non-immigrant visa. Only way is what I mentioned to get back on non-immigrant visa from EAD and then apply for change of status to H1.

If he has not crossed six year limit he can apply for H1 But needs to go out US and come back with new stamping if Stamping is expiered.
If it is over six year it is different story all together

 

[TheRealCanadian]

Poster's husband can apply for H1-B however to be qualified for that he needs to go out of US, come back with valid H4 (which I assume he has based on first posting). Thus, he will be converted back to H4 from EAD and then apply for change of status from H4 to H1.

Wrong. Poster's husband isn't applying for an H-1, his employer is. The employer can file an H1 petition for anyone, no matter what their current status or if they are in the US or not.

What remains an open question is if a change of status to H1 would be approved by USCIS. There would be a good chance that he would need to leave the US, get a visa stamp and re-enter.

 

[dyingforgc]

Wrong. Poster's husband isn't applying for an H-1, his employer is.

Of course I meant poster's husband's employer. how can one file his/her own H1 without spnsor. May be I anticipated that its too obvious to understand that h1 petitioner is his employer.

The employer can file an H1 petition for anyone, no matter what their current status or if they are in the US or not.

can employer file H1-B for a green card holder or US citizen? will USCIS accept h1-b petition at first place for GC holder? answer to this question will be same for the people who is(using) on EAD. It's the USCIS who rejects/denies/approves applications.

 

[TheRealCanadian]

It's the USCIS who rejects/denies/approves applications. which is our interest of discussion here. We are not discussing whether employer can file or not.

Of course the employer can file for him. He's not a US citizen or permanent resident and if the job and his qualificiations are sufficient, then the employer can file. His current status (adjustee, outside the US, non-immigrant status or out of status) is irrelevant for the purposes of the H-1 petition itself.

will USCIS accept h1-b petition at first place for GC holder? answer to this question will be same for the people who is(using) on EAD.

This is 100% wrong, since an adjustee and a permanent resident are very different. A person using an EAD based on an I-485 is a non-immigrant alien in a period of staty authorized by the Secretary of DHS, and therefore is eligible to have an H-1 petition filed by his or her employer.

 

[dyingforgc]

Of course the employer can file for him. He's not a US citizen or permanent resident and if the job and his qualificiations are sufficient, then the employer can file. His current status (adjustee, outside the US, non-immigrant status or out of status) is irrelevant for the purposes of the H-1 petition itself.

Agreed.

A person using an EAD based on an I-485 is a non-immigrant alien in a period of staty authorized by the Secretary of DHS, and therefore is eligible to have an H-1 petition filed by his or her employer.

Agreed. I was too hasty to find an example. However my main emphasis was not on whether employer can or can't file. I was emphasizing on going out-of-country to get back on non-immigrant status from EAD, which is correct.

 

[TheRealCanadian]

I was emphasizing on going out-of-country to get back on non-immigrant status from EAD, which is correct.

And in this you are correct, but it would be interesting to file a change of status request along with the H-1 petition. It doesn't cost anything, and I'm not aware of anything that would explicitly prohibit USCIS from granting him H-1 status if he's legally present as an adjustee. The Cronin memorandum indicates that USCIS has the statutory authority to convert a parolee back into an H-1.

 

[dyingforgc]

it would be interesting to file a change of status request along with the H-1 petition.

I don't think change of status will be approved. change of status is valid only if one is filing to change status from A non-immigrant staus to B non-immigrant status. EAD is pending immigration status.

It doesn't cost anything, and I'm not aware of anything that would explicitly prohibit USCIS from granting him H-1 status if he's legally present as an adjustee. The Cronin memorandum indicates that USCIS has the statutory authority to convert a parolee back into an H-1.

yes, h1-b can be approved by USCIS. however once EAD is used, status from h1-b is toast and only option to get back on h1,is to go out of US and come back with h1-b. I am not aware of any memo, which allows to convert back to h1-b(non-immigrant status) from EAD(pending AOS) without leaving country(US).

 

[mogumogu]

Thank you all!

Thank you all very much for replying!

 

[immiq]

And in this you are correct, but it would be interesting to file a change of status request along with the H-1 petition. It doesn't cost anything, and I'm not aware of anything that would explicitly prohibit USCIS from granting him H-1 status if he's legally present as an adjustee. The Cronin memorandum indicates that USCIS has the statutory authority to convert a parolee back into an H-1.

Can you show that Cronin Memo?

 

[TheRealCanadian]

Can you show that Cronin Memo?

Just use search or google.