OT: H1 reapplying after being on EAD, 3 years still left on H1

[sfmars]

You should learn to admit you are wrong when evidence was shown.
Let's see the law. I believe you may still come back with your illogicals, but at least people here could understand better with actual word of law.

INA 214(g)(7)
(7) 2/ Any alien who has already been counted within the 6 years prior to the approval of a petition described in subsection (c), toward the numerical limitations of paragraph (1)(A)shall not again be counted toward those limitations unless the alien would be eligible for a full 6 years of authorized admission at the time the petition is filed. Where multiple petitions are approved for 1 alien, that alien shall be counted only once.

I do not argue with that, but alien needs to keep valid H1B-I94 status to use this benefit (to be not counted and in the cap if he/she has sometime left of the 6year H1 limit )

 

[GotPR?]

I do not argue with that, but alien needs to keep valid H1B-I94 status to use this benefit (to be not counted and in the cap if he/she has sometime left of the 6year H1 limit )

You still believe H1 status must be retained to get cap exempt ? Man, this is so hard !!
This is the last one. If you still say you are right, sorry but I have to say you have literacy problem.
http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

Why don't you run Poll here and find out how many H1 -> other status -> H1 got denied because of quota ?

 

[sfmars]

You still believe H1 status must be retained to get cap exempt ? Man, this is so hard !!
This is the last one. If you still say you are right, sorry but I have to say you have literacy problem.
http://www.uscis.gov/files/pressrelease/PeriodsofAdm120506.pdf

Why don't you run Poll here and find out how many H1 -> other status -> H1 got denied because of quota ?

Look at the http://www.immigration-law.com Breaking news, questions and answers. It is not eaxctly the same situation but simular, and lawyers say that H1B status needs to be maintained and to be valid to return back to H1


01/20/2007: [Retrogression, EAD, AP]: I filed EB-3 based I-485 application. Because of the EB-3 visa number retrogression, I will have to wait for a long time before my I-485 is adjudicated. Pending I-485 adjudication, I exhausted the six-year H-1B limit but extended H-1B status for three year using AC 21 section 104(c). About nine months ago, I visited my family in my home country using Advance Parole which remains valid April 2007. Since returning from the trip on AP, I have been working without a valid EAD. My H-1B I-94 will expire in March 2007 and I want to keep my H-1B status until the green card approved. What do I have to do?

Analysis: The rule on AD, EAD, and H-1B status pending I-485 is very complicated as related to the interpretation of the AC 21 Act. This rule has to be fixed by the AC 21 regulation, which has been delayed by the USCIS for years and years. In order to deal with the confusion in the immigrant community, the USCIS has released various memorandums to offer some answers to these questions with a warning that the interpretation would remain "provisional" and can be changed once the AC 21 regulation is enacted and released. Until such regulation is released, though, the memorandums have given guidances to the immigrants. Under the current guidance, the H-1B alien can return to the job on Advance Parole and resume the H-1B empoyment without a valid EAD, and the alien can also reinstate the H-1B status by filing application for extension of thre H-1B status. However, there are a few caveats when it comes to the details in factual situations. First one can reinstate the H-1B status only when the H-1B I-94 remains valid at the time of filing of the extension application. Accordingly, in the current fact situation, the current H-1B will expire before Advance Parole I-94 will expire and the alien must file the H-1B extension petition to resume the H-1B status before the H-1B I-94 expires. If the situation is opposite in that Advance Parole I-94 will expire first before the H-1B I-94, the alien must still file H-1B extension before the Advance Parole I-94 expires. Otherwise, the alien will not have a valid employment authorization. H-1B status is not automatically reinstated. Retainstatement H-1B status requires the action of filing of H-1B extension petition. Recently, Aytes memorandum liberalized the interpretation of the H-1B extension eligibility, but such liberal interpretation does not apply to the situation of an alien in a parolee status after the H-1B nonimmigrant status is expired. Secondly, as for the employment authorization without EAD, once H-1B expires first, it should be assumed that the employment authorization will also expire as the employment authorization is presumed on a valid H-1B status. Accordingly, the alien must timely file H-1B extension petition regardless of the validity of advance parole. Again, people should remember that this rule is provisional and can change either by the enactment of AC 21 regulation or release of different memorandum.

 

[GotPR?]

Look at the http://www.immigration-law.com Breaking news, questions and answers. It is not eaxctly the same situation but simular, and lawyers say that H1B status needs to be maintained and to be valid to return back to H1


01/20/2007: [Retrogression, EAD, AP]: I filed EB-3 based I-485 application. Because of the EB-3 visa number retrogression, I will have to wait for a long time before my I-485 is adjudicated. Pending I-485 adjudication, I exhausted the six-year H-1B limit but extended H-1B status for three year using AC 21 section 104(c). About nine months ago, I visited my family in my home country using Advance Parole which remains valid April 2007. Since returning from the trip on AP, I have been working without a valid EAD. My H-1B I-94 will expire in March 2007 and I want to keep my H-1B status until the green card approved. What do I have to do?

Analysis: The rule on AD, EAD, and H-1B status pending I-485 is very complicated as related to the interpretation of the AC 21 Act. This rule has to be fixed by the AC 21 regulation, which has been delayed by the USCIS for years and years. In order to deal with the confusion in the immigrant community, the USCIS has released various memorandums to offer some answers to these questions with a warning that the interpretation would remain "provisional" and can be changed once the AC 21 regulation is enacted and released. Until such regulation is released, though, the memorandums have given guidances to the immigrants. Under the current guidance, the H-1B alien can return to the job on Advance Parole and resume the H-1B empoyment without a valid EAD, and the alien can also reinstate the H-1B status by filing application for extension of thre H-1B status. However, there are a few caveats when it comes to the details in factual situations. First one can reinstate the H-1B status only when the H-1B I-94 remains valid at the time of filing of the extension application. Accordingly, in the current fact situation, the current H-1B will expire before Advance Parole I-94 will expire and the alien must file the H-1B extension petition to resume the H-1B status before the H-1B I-94 expires. If the situation is opposite in that Advance Parole I-94 will expire first before the H-1B I-94, the alien must still file H-1B extension before the Advance Parole I-94 expires. Otherwise, the alien will not have a valid employment authorization. H-1B status is not automatically reinstated. Retainstatement H-1B status requires the action of filing of H-1B extension petition. Recently, Aytes memorandum liberalized the interpretation of the H-1B extension eligibility, but such liberal interpretation does not apply to the situation of an alien in a parolee status after the H-1B nonimmigrant status is expired. Secondly, as for the employment authorization without EAD, once H-1B expires first, it should be assumed that the employment authorization will also expire as the employment authorization is presumed on a valid H-1B status. Accordingly, the alien must timely file H-1B extension petition regardless of the validity of advance parole. Again, people should remember that this rule is provisional and can change either by the enactment of AC 21 regulation or release of different memorandum.

All it is saying is extension must be filed timely meaning it should be filed before H1 I-94 expiration(which is equal to H1 petition expiration when it comes with I-797A like in Q&A). Nothing special.

How does it link to quota issue ?

To file change of status or extension of non-immigrant status, one must have valid non-immigrant petition/status. That is what above Q&A is saying.
Our argument is when H1 status was interrupted by other status such as F, H4, L1/2, J, B, etc etc, whether one shoud come under quota or not next time COS (it is rather from authorized stay to non-immigrant status in techy's case, though) to H1 is applied.
YOu said one must be subject to quota, others including me says no quota is applied.

 

[perm_lc]

USCIS becomes more liberal in status changes.

Recent memo, clearly explained that one need not be in H1 status to extend h1b. Therefore one can change/extend h1b status from AOS, if previously hold such status (h1), without new numarical count, if he/she does not consume entire 6 years.

This is the advise I got from my lawyer to use EAD once I received it. He recomended to use EAD than H1B as it is more expensive.

 

[techy2468]

------------------------------------------------------------------------

For techy;

Once you have been counted against the quota; and you haven't left the country for more then one year (note this currently only applies if i-94 card expired while you were outside the country and you stayed out for more then one year. You are not subject to the quota.

You would file new h-1b (ie., not extension of status or change of employer) but tick the box that you have been on h-1b once in last six years. USCiS will accept the case and approve it.

However, since you are not currently in non immigrant status then you cannot get an I-94 card with the h-1b approval. The only way you can get the I-94 card is at port of entry when you re-enter USA. Please note that when port of entry officers see an advance parole stamp in your passport they may not admit you in h-1b. You need to ensure that they do or you won't be on h-1b status.

does that mean.....after i use EAD...i am on AOS status (have used AP).....

so i wont get I-94 with my H1 approval.......

but does that mean i need to have I-94 (i know i am missing the basics...but never been in this situation....so humor me and answer this question ), cant i simply get H1 approval and start working (just like i did in past J2 to H1)

 

[GotPR?]

I think change of status is applicable to switch between non-immigrant status'. In your case, you will switch from authorized stay(AOS pending) to non-immigrant H1 status, so that it's not simple COS, and you may not be able to change the status to H1 in the US. It means you may get H1 approval without I-94, and you need to travel and reenter with H1 stamp to get back to H1 status.

To be on H1 status, you have to be issued with I-94 annotated as H1 because all the non-immigrant status is dictated by I-94.

 

[techy2468]

1. I am sure about me not being counted in the quota......reason....i just realised that when i applied for H1 back in July 2004, i got my H1 approval within 2 weeks becos of premimum processing......even before the quota started in Oct 2004 (in the past i was unaware of everything since i was not a visitor to this forum )


2. right now i have travelled using AP.....I work for company A for Client B........now Client B has filed my H1........

so are you guys saying that i will have to go out of country.....and get a I-94 of H1 to keep working in H1 status????? ..........it does not sound right...........i will wait for the attorney's opinion though...


but the real problem is that........i have an interview with company C ......which looks like interesting work..........but i will have to use EAD...........

 

[gc_retrogress]

Yes please leave



Take it easy it was just a joke.

 

[perm_lc]

Techy; you didn't frame the question correctly.

If ones H-1b I-94 card has expired and they are working on EAD but they haven't exhausted six years then my statements apply (not subject to cap and no I-94 card).

However;.

what is the technical reason/law that constrains the uscis not providing I-94 card if any one apply COS (for example, from AOS to H1B) with out leaving US? why one should leave and reenter to aquire that status? After all the guy was already inspected and admitted in H1B before Right? What a stupid stand..? Is it just to increse the revenue to airlines?

Why it is not applicable in reverse case (H1b to AOS/EAD)? Ie Any one does not required to leave the country to reenter in AP to use EAD by getting off from H1B?

 

[sfmars]

I belive it was prior to 1999 that there wasn't any non immigrant visa that was dual intent. All visas were single intent.


Since the past if you tried to change from non immigrant status to 485; you essentially violated the terms of which you entered the country; since you are not supposed to have immigrant intent. I believe at one point of time one would mainly only apply for greencard from consulate. That is you had to go outside usa to complete the process.

Also, laws weren't changed to filter all the way through for the "dual intent" of h-1b and L-1.

It is very funny to watch your thoughts evolution.

One week ago you pointed the examples from your "personal experience".
When people jumped directly from F1 visas to AOS.

http://boards.immigrationportal.com/showpost.php?p=1586058&postcount=61

Now you keep saying that only H1 and L1 are dual intent, and per my understanding of your post, you strongly believe that is law violation when individual files AOS being on B1 or F1 visas.

It looks like you are very non consistent in your thoughts.

 

[desi3933]

It is very funny to watch your thoughts evolution.

One week ago you pointed the examples from your "personal experience".
When people jumped directly from F1 visas to AOS.

http://boards.immigrationportal.com/showpost.php?p=1586058&postcount=61

Now you keep saying that only H1 and L1 are dual intent, and per my understanding of your post, you strongly believe that is law violation when individual files AOS being on B1 or F1 visas.

You got it wrong and I am not surprised. Dual Intent means that one can get H1/H4/L1/L2 visa from consulate even if I-140 approved or I-485 is pending for him. One can not get other visa or change status to other visa if I-140 is approved or I-485 is pending.

One can file I-485 from almost any status. Feel free to check for exceptions. (Hint: Residency)


It looks like you are very non consistent in your thoughts.

_________________
desi3933@gmail.com

 

[baby_mde]

I belive it was prior to 1999 that there wasn't any non immigrant visa that was dual intent. All visas were single intent.

Status=non immigrant status
485=authorized stay by the attorney general.

485 is not a status. You are adjusting from non immigrant status to lawful permanent residency.

Since the past if you tried to change from non immigrant status to 485; you essentially violated the terms of which you entered the country; since you are not supposed to have immigrant intent. I believe at one point of time one would mainly only apply for greencard from consulate. That is you had to go outside usa to complete the process.

Since 485 isn't a status; you can't change from 485 to non immigrant status. The only way you can do it is to go outside the country (have consulate check you out that you didn't violate your non immigrant visa) and then they would allow you back in.

I don't think it was ever contemplated that once a person files a 485 that they would ever go back to a non immigrant status. Also, laws weren't changed to filter all the way through for the "dual intent" of h-1b and L-1.

Unitednations and other experts,

I am using EAD and do not have a valid H1/H4. My spouse is primary applicant and our 485 is pending since last 2 years. My spouse is on H1 and she going to US consulate in India to get Visa Stamp in Passport.

Can I get H4 Visa Stamp in my passport if I go with my spouse to US consulate in India??

If I eneter into US with H4 Visa (instead of Advance Parole), can still work on EAD??

What happens to my H4 Visa??

Thanks in advance.

 

[sfmars]

One can file I-485 from almost any status. Feel free to check for exceptions. (Hint: Residency)

_________________
desi3933@gmail.com

It is your understanding is completely wrong.

Look here http://www.nvo.com/beaulier/dualintent/
and even here http://www.shusterman.com/di-vsa.html

and you understand what means Dual Intent Doctrine.


I showed couple of links to prove my point of view that only H1/L and E allow you legally to file AOS do you have anything else to disprove my arguments,
something more valuable.

 

[desi3933]

Unitednations and other experts,

I am using EAD and do not have a valid H1/H4. My spouse is primary applicant and our 485 is pending since last 2 years. My spouse is on H1 and she going to US consulate in India to get Visa Stamp in Passport.

Can I get H4 Visa Stamp in my passport if I go with my spouse to US consulate in India??
Yes

If I eneter into US with H4 Visa (instead of Advance Parole), can still work on EAD??
Yes, but in that case your H4 status is no longer valid. If you plan to work on EAD, why bother to get H4. You can, however, request your employer to sponser H1 for you. This will serve as backup for you, in case I-485 is denied. This may be subject to H1 quota, depending on whether you had prior H1 or not.

Here is other option, in case your I-485 is denied and your spouse maintains H1 status. You can always re-enter USA on H4 visa and get inro H4 status.

What happens to my H4 Visa??
Visa is still valid and it can be used down the line to enter in USA on H4 status


Thanks in advance.

Please verify information with your lawyer.
_________________
desi3933@gmail.com

 

[desi3933]

It is your understanding is completely wrong.

Look here http://www.nvo.com/beaulier/dualintent/
and even here http://www.shusterman.com/di-vsa.html

and you understand what means Dual Intent Doctrine.


I showed couple of links to prove my point of view that only H1/L and E allow you legally to file AOS do you have anything else to disprove my arguments,
something more valuable.

http://www.murthy.com/chatlogs/ch011705_P.html
Search for Once a person on F-1 status has filed the I-485 on that page.

This is one example where person on F1 can file I-485

 

[sfmars]

http://www.murthy.com/chatlogs/ch011705_P.html
Search for Once a person on F-1 status has filed the I-485 on that page.

This is one example where person on F1 can file I-485

He can be not a primary applicant.

He can be married to the primary applicant before filing I485

Even if it is true from that chat (as you understand), it does not mean that doctrine is not valid anymore and that F1 student will get approval of his I485.

 

[desi3933]

It is your understanding is completely wrong.

Look here http://www.nvo.com/beaulier/dualintent/
and even here http://www.shusterman.com/di-vsa.html

and you understand what means Dual Intent Doctrine.


I showed couple of links to prove my point of view that only H1/L and E allow you legally to file AOS do you have anything else to disprove my arguments,
something more valuable.

Another example-
http://www.grasmick.com/board/?topic=topic1&msg=39284

By filing an I-485, you show clear immigrant intent. For this reason, once you've applied for an I-485 you are no longer eligible for a new TN, since to qualify for a new TN, you cannot have dual intent. Dual intent is defined by having shown the intentions of wanting to switch to a permanent status (i.e. Green Card), while still in a temporary status (i.e. TN, H1, L1, F1, B1, etc). Only H1, and L1 visas explicitly allow for dual intent, and so people can extend their H1 and L1 visas while their I-485 is pending. TN, F1, and B1 statuses do not afford your the right you to extend your status while your I-485 is pending.

 

[desi3933]

He can be not a primary applicant.

He can be married to the primary applicant before filing I485

Even if it is true from that chat (as you understand), it does not mean that doctrine is not valid anymore and that F1 student will get approval of his I485.

Are you saying that I-485 will be rejected for people on F1?
This is non-sense.
One needs a one (or more) valid I-130 or I-140 approved petition to file I-485. Status does NOT matter.

PS: Before you say, let me add this. The PD must be current at the time of filing of I-485 application.

Trivia Question:
Why I-485 is application whereas I-140 is petition?.

 

[sfmars]

Are you saying that I-485 will be rejected for people on F1?
This is non-sense.
One needs a one (or more) valid I-130 or I-140 approved petition to file I-485. Status does NOT matter.

PS: Before you say, let me add this. The PD must be current at the time of filing of I-485 application.

Trivia Question:
Why I-485 is application whereas I-140 is petition?.

In case of marriage he does not need I-140 and I-130 he is included in I485 as dependant (spouse). Finally he can be refugee