New job offer - H1/EAD/AP and AC21 - Confusions - Pls Help

B

badish

New Member
Hi all, this is my situation.

I filed my GC process (EB3,PD Aug 2003) with Company A and i am still working for them. 140 is approved and 485 is pending. I have an EAD, AP and my h1 is still valid. I went out the country last May and was paroled in, since I did not have a valid stamp in my passport. I did not change anything in my I-9 forms, and am still working with Company A.

Q1: I am not sure whether I am on h1 or whether I am automatically on EAD.

Q2: My EAD is expiring this Sept. I filed for an extension only last week (I know... real bad). How will this affect my current employment if my h1 was automatically invalidated?

Q3: In my current job, my client (Contracted thru Company A) is in the process of cutting down contractors. My head is in the line, so any day. So I want to be proactive and find another job. The situation is that with my current company jobs are hard to come by. So, lets say i have to switch employers, then what should i use, assuming my h1 has not been automatically invalidated, can use that for my transfer, and still use AC21?

Q4: If i cant use h1 for the job transfer assuming it was invalidated as i was paroled in last may, then if I use my EAD to accept the new job offer, what happens when the EAD extension doesnt come thru on time. Is the gap counted as unauthorized work? If so, i remember reading somewhere that USCIS pardons upto 120 days of un-authorized work when approving GCs or something to that effect. Is this true?

Any insights would be really appreciated. Thanks in advance.
 
badish-

You are still on H-1 status. The Cronin memo of May 2000 states that if you use advance parole to enter the U.S., your H-1B work authorization or the right to extend H-1B is not affected.

Thus, to answer your questions:

1. Since you used your AP to enter, you are still on H-1B status.

2. The fact that your EAD may not be approved by September does not affect your job status, again, you will be on H-1B status as it is still valid.

3. You can either use your EAD (thus abandoning your H1 status) or you can transfer your H-1B as it will still be active. You can also do AC21 transfer to a same or similar occupation.

4. As I wrote above, your H-1B status is fine. But to answer your question, in the hypothetical, the period between the expiration of your EAD and the time of your renewal EAD will be unauthorized employment. As employment-based immigrant, you can have up to 180 days of unauthorized employment or out of status. See more about it here.

Hopefully this helps. Best of luck.
 
Thanks so much for your reply. This clarifies a lot of doubts! Now I just hope I find an employer who is willing to transfer my h1, so that i dont have to use my EAD and get into any hassle of unauthorized employment gaps.

Thanks again!
 
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