Laid off - H1B, pending EB1-OR, concurrent AOS application

P

pprkgp

Registered Users (C)
Here are my details:
Canadian Citizen, H1-B, laid off last week.
My I-140 EB1-OR is pending (ND 5/14/2002) and I-485/EAD/AP is also
pending (ND 8/23/2002).

1. Am I out of status?

2. What options do I have? Anyone with similar experience?

3. It seems that there is 30-45 days period within which H1-B transfer is
possible. Is this the case? I was told that maintaining H1-B status is good
in case I-140 doesn't go thru.

4. If I transfer H1-B, will the I-140 petition be invalid? My ex-employer
will not pull the petition from INS. If I transfer H1-B, should it be with
a similar job description as on I-140?

5. Can I just sit out and wait till I get my EAD? Can I work on EAD for a different employer immediately with a similar job title/description?

I would appreciate your comments or any similar experiences.

thanks in advance
bye
ppr
 
I-140/1-485 Simultaneous Filing

Hi Friends,
I am planning to file I-140/I-485 together.After we receive the EAD cards we can start working using those cards.My question here is :
If my wife who is presently on H-4 starts working on EAD card while i still maintain the H-1 status what will happen if something happens to the I-140.Can my wife again go back to H-4??
Thanks in advance
 
pprkgp

1. No u r not out of status. Your pending 485 is saving u.

2. Either u can wait of EAD based on pending 485 or apply for T visa and reenter on it. Also chk O visa.

3. If u can find a employer to do your H1, that's great. But he has to file new petition, it is not transfer of H1. You won't be able to work during that time.

Also check with your attorney rearding O Visa.
for details regarding O Visa goto: http://www.usvisanews.com/niw-h1b.html

4. Is your petition for I-140 based on employer or Is it self sponsered (you said it is EB1 category)..pls clarify b4 I respond?

Aliens of Extraordinary Ability who are entering the United States to continue work in the field in which he or she has extraordinary ability, may be eligible for a First Employment-Based Preference (EB-1). This allows the alien to bypass the labor certification process and forego the requirement of a job offer.

5. That depends upon above answer.
 
usnycus

Hi usnycus
i am on H-1B and my wife is on H-4.if both of us gets the EAD and if both of us start working on EAD if something happens to our underlying I-140(I-140/1-485 Concurrent filing).what are the options we will have??
What if i continue on H-1B and my wife works on EAD.What options will she have??
what do you think is the best thing to do??
Thanks in advance
 
Valabour_2002

I think you should not use EAD unless it is really urgent/required. You have H1-B and if u r planning to continue with the employer who filed for your GC, work on H1-B.

In case u have decided to use EAD, your H1-B will become invalid so as your wife H4. To enter in US, u and your wife both will require Advance parole. This is not a problem as long as your 485 is sailing smooth. In case you face problem during AOS and for some reason INS rejects your petition, you need to leave the country and options are very less after that(only new H1 or L1).

In case u will continue to work on H1 but your wife decided to use her EAD. In this case if she is going outside US, it is good to get AP before leaving. She can enter either on AP or on her H4.
If something goes wrong during AOS, she can leave the country and come back again on H4 as long as your H1 is valid.
 
Hi Usyncus,
Thanx for your reply. Here are some clarifications:

#2 : I was told that if I change back to TN-1 (non-immigrant
visa), it might jeopardize my AOS application. is that so?

#3: Why do you say that new employer has to file a new H1
petition rather than a transfer if it happens in 30-45 days?

#4: My I-140 petition is based on employer (EB1-OR). My employer said that they will not revoke the application.

The O-visa seems to have similar requirements as the
EB1-OR. What is the benefit of O-visa vs H1-B? How long
does it take to get O-visa?

thank you very much
bye
rao
 
#2 : I was told that if I change back to TN-1 (non-immigrant
visa), it might jeopardize my AOS application. is that so?

ANS: Yes u r right...AOS will be fine but I think you will not get TN-1 becuase of pending 485 (immigration intent)... Regarding "O" check with your lawyer. I am not sure if that is also counted as if u r on H1. Usually people who are eligible under EB1, are eligible for "O" also....Nothing harm in confirming with more then 1 lawyer.

#3: Why do you say that new employer has to file a new H1
petition rather than a transfer if it happens in 30-45 days?

ANS; As far as I know, there is nothing call 30-45 days grace period. Once H1-B visa holder is laid off, he has to leave country immediately. BTW, INS has in past approved cases like this. But in current condition we don't know how INS will treat cases like this.

#4: My I-140 petition is based on employer (EB1-OR). My employer said that they will not revoke the application.

ANS: Once u recieve your EAD, you can work for differnt employer and also transfer your petition to new employer (after 180 day's) if job title/description is same. A lot of people have done that in past.
 
usnycus

Hi usnycus,
If both me and my gets the EAD card based on my I-140/1-485 and if i start working using that EAD card and if my wife doesn't.will my wife still remain on H-4 status as she is not using her EAD??
Thanks
 
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