reapply for H1 while AOS pending

G

gica

Registered Users (C)
My company really screwed it by not extending my H1 last year (they prefered to switch me on EAD card) and not applying for EAD extension on time. Now I am facing the fact that I will be out of work permit for some time (until I can go and get an iEAD card). The company is trying to apply for H1 again (premium processing) so I don't have to be unemployeed. They already start creating a job description for posting job offers etc. I have two questions for you:

1. If the H1 is not extended on time and expire, do you have to reapply for new H1 or extend the old expired one (that given the fact that the original one was used only 3 years).
2. Is this process of obtaining a new H1 with posting job offers etc (I guess is called Labor Certification) influencing the AOS process in any way?

Thank you very much for your help!
 
Gica,

Redoing H1 and spending all that money seems wasteful to me and will take a lot of time IEAD seems a better option. If there is a time lag, just be on virtual leave ( ie dont get paid) for the time lag thats the best option if your company is co-operative. Or do an adjustment of those days pay at a later day.

You wont be illegal as long as you are not paid and AOS is pending the only thing is you cant work during that period. Consult a lawyer too.

You may also try a < 90 day iEAD after explaining the situation it may work. BTW a better answer can only be given if we know waht you EAD application RD and ND are
 
Last edited by a moderator:
EAD extension was your responsibility don't blame your company, you could have done it by your self.

When is your current EAD is expiring ? And when did you filed for renewal?
If your H1 has been expired then you need to apply for new one ,No matter how many years you have used it.

Applying for new H1 will not effect your AOS , since AOS uses LC(The labor certification is for a job in future), and H1 uses LCA (Employers affirm in the labor condition application that the wage offered to the applicant is at least as high as that paid by the employer for the same type of job, and the number equals or exceeds the prevailing wage for the job in the same geographical area; that working conditions will not adversely affect those workers similarly employed; that there is no strike or lockout at the employer's premises; and that the notice of the LCA has been given to current employees ). Both are totally different.

If you have started working on EAD then it mean you are no longer on H1(non-immigrant status) so you can not get extension on current H1. You need to have a new H1 subject to annual H1B visa and to start working on that you need to go out of the country and get your PP stamp again.
 
Too many hassles on the H1 route! When you leave the country to get H1 stamped, you could be abandoning your AOS. Better to wait and apply for iEAD.

What you might be interested in is finding out if you can work on EAD renewal receipt. There was a hot discussion on the forum some time ago with regards to this topic. While for sometime we were of the impression that this is allowed, the water is murky now. Check with your lawer, if it is true then you can just continue working for the same employer, as long as your EAD is back dated!
 
My complete reply should have included 140s comments also but anyway, in addition to my previous reply please add 140's comments now.
 
On the same token ..

Vipsha,

My H-1B expires in dec 2003, but I can renew it. My 2nd EAD is renewed till May 2004. I am contemplating if I should renew my H-1 B or not?

I furnished a new I-9 when I got my first EAD, does this mean that I have given up on my H-1 ???

So, if I keep renewing my EAD's on time, I should be safe without renewing my H-1B, CORRECT ??

Thanks
Eventually,

WAC02080XXXX
 
eventually,

your H1 is a history now.

You are right just take care of your EAD dates and be happy, forget about H1. And also if you don't have AP in hand in that case it is better to have AP also so that in case of emergency you can travel, no need to ask INS to issue emergency AP.
 
Originally posted by 140_takes_4ever
Too many hassles on the H1 route! When you leave the country to get H1 stamped, you could be abandoning your AOS. Better to wait and apply for iEAD.

What you might be interested in is finding out if you can work on EAD renewal receipt. There was a hot discussion on the forum some time ago with regards to this topic. While for sometime we were of the impression that this is allowed, the water is murky now. Check with your lawer, if it is true then you can just continue working for the same employer, as long as your EAD is back dated!
Click to expand...

My EAD RD is May 7th and current one expires second week of July. That leaves a gap of about a month between old EAD and iEAD.

Loosing one month work permit is bad for me because of the implications of not being company's employee (stock options, espp, healt insurance etc).

140_takes_4ever, what do you mean by abandoning AOS while going out of US to get H1 stampped?

Regards.
 
You need AP..

Do you have AP or not? If no then you are out of luck, since leaving country without an AP and not maintaing H1 status means abandoning GC.
 
Re: You need AP..

Originally posted by INSBeats2death
Do you have AP or not? If no then you are out of luck, since leaving country without an AP and not maintaing H1 status means abandoning GC.
Click to expand...

I don't think that is true, because I will have valid H1 status. That's the whole reason for leaving US, to come back as a H1 holder again.
The whole idea is to apply again for H1, get the H1 petition (which means valid H1 status), go to Vancouver, get the H1 stamp in the passport and come back to US as H1 holder.

Now the question is, leaving US (surrendering the I-94 from the last entry in US, which btw was with the old H1 status) and getting back in with a new I-94 as new H1 holder will affect the AOS processing? Logically it shouldn't ... but hey, who said it has to be logic???
 
When you will apply for VISA stamping at US consulate outside the USA , in form (I forget the form number) you need to mention that you are under AOS and after seeing that you may not be granted VISA. Consulate may say that since you have already under AOS then why do you need VISA instead you can have EAD and AP route.

Now the question is, leaving US (surrendering the I-94 from the last entry in US, which btw was with the old H1 status) and getting back in with a new I-94 as new H1 holder will affect the AOS processing? Logically it shouldn't ... but hey, who said it has to be logic???

No it will not effect your AOS.

New addition
=========

If you are leaving the USA without valid H1 stamp on your Passport or valid AP then that would be abandoning GC.

Having I-129 approval does not mean you have valid VISA on your passport, as you said that your old H1 VISA has already been expired so probably it will be abandoning GC.
 
Last edited by a moderator:
Vipsha and others....- question

Vipsha and others......,
My H1 expired on Mar 3rd 2003 and extended 7th year H1 and got the receipt with ND Mar 4th 2003. I applied for H1 extension because, I didnt have an EAD.

Meanwhile, as I am on AOS, I had applied for first EAD in Nov/Dec 2002 and got my EAD card in April 2003.

Also, I travelled out of country twice between Feb and April using AP. When I entered USA on Feb 27th, the officer asked me to use my AP as I had on few days of H1. Then again I used my AP to enter USA again on April 16th.

Now my questions are,
**Is there any problem as I continued working from Mar 3rd (H1 expiry date) to April 24th (EAD approval date)?
**As I extended my H1 on Mar 4th, wont it cover my employment eligibility?
**When does that mean that I am on EAD? Immly after getting the EAD card, OR should I have to anything to make sure that I am on EAD??

I appreciate your answer and thank you.
 
Last edited by a moderator:
Our first EADs expired on May 10th and just before that my attorney suggested we should file for H1B renewal since it expires on 6/14. It was filed under premium processing (approved in 2 days) and we made overseas trip right after that.
I-765 Approved on 6/11/03
WAC 03-128-5XXXX
RD: 3/13/03
ND: 3/17/03

At the POE - JFK (NY), we were asked to show the new approvals since we had only the old H-visa stamps in the passport.

Both my wife's and mine have been approved and we are waiting for the card to be received.

My employer moved me to TX (from bay area) after 180 days and I am on EAD since then. However, I never made an overseas trip to use AP (the previous AP).

NVI
 
I have added new comments for gica in my last reply.

Atri,

**Is there any problem as I continued working from Mar 3rd (H1 expiry date) to April 24th (EAD approval date)?

since you have receipt notice with you for I-129 so you can continue working with your employer without interruption. I think it is 240 days rule that you can work on receipt notice if INS does no act on your I-129 case for 240 days.

**As I extended my H1 on Mar 4th, wont it cover my employment eligibility?

Yes it will be covered.

**When does that mean that I am on EAD? Immly after getting the EAD card, OR should I have to anything to make sure that I am on EAD??

Having EAD and using EAD are two different things, Having EAD does not invalidate your H1 status but if you use it than only you will loose your H1 status. To use EAD you need to fill I-9 form with your employer.
Once you are done with I-9 form (you need to say that you will be using EAD as work authorization document in form), then you can say that you are on EAD.

nvi,

Your case looks clean
you went out with valid VISA stamp on your passport and came in with valid VISA stamp on your PP. Since than you are using EAD

correct me if I am wrong.
 
Same boat, but sunk deeper

I was in exact same boat. Reading your case as if reading mine.

My company switched me to EAD but didn't renew it in time. I remind them to renew, but was told by the time EAD expire, GC should be in hand.

Anyway, I end up staying at home for exactly 10 weeks waiting for the 90th day to get i-EAD.

Company got the premium H-1 for me (quite costly), but I was told by the company attorney that I have to go to US consulate in TJ, Mexico to "activate" the premium H-1. To make matter worse, my AP was expired too, so waited three weeks to get AP renewed. It turned out it took 2 months to get Mexico visa, after 10 weeks of twist and turn, I finally got i-EAD.

10 weeks without pay, health, profit sharing...! But I sold lots of belongs on eBay and read several great books in the mean time :)

WAC02-046
 
On the other hand, eventually was wondering whether to extend H1 or work on EAD. My company's lawyers went with extending H1, then there's no need for endless EAD renewals and it's easier to travel without having to apply for AP and renew it.

However, I think that I-9 info does not go to BCIS, it's just for company records. If one supplies EAD to HR department for I-9 and then their H1 extension is approved, they may theoretically go to HR and ask I-9 to be switched to H1? Or not? I mean, I'd rather not mess with these things.
 
Vipisha:

I moved to TX last August and started using EAD with I-9. But now that it was about to expire, my employer filed H1 renewal; after that I went on an overseas trip in May (after my EAD expired) and re-entered (before my old H1 expired) with my old H1 stamp in the passport and a new approval in hand.

~ NVI
 
Re: Same boat, but sunk deeper

Originally posted by ImmigrateMe
I was in exact same boat. Reading your case as if reading mine.

My company switched me to EAD but didn't renew it in time. I remind them to renew, but was told by the time EAD expire, GC should be in hand.

Anyway, I end up staying at home for exactly 10 weeks waiting for the 90th day to get i-EAD.

Company got the premium H-1 for me (quite costly), but I was told by the company attorney that I have to go to US consulate in TJ, Mexico to "activate" the premium H-1. To make matter worse, my AP was expired too, so waited three weeks to get AP renewed. It turned out it took 2 months to get Mexico visa, after 10 weeks of twist and turn, I finally got i-EAD.

10 weeks without pay, health, profit sharing...! But I sold lots of belongs on eBay and read several great books in the mean time :)

WAC02-046
Click to expand...

ImmigrateMe, based on what are you telling me, it seems that we work in the same company! :)
Now seriously, did you have stock options in the company, were you enrolled on any ESPPs? If yes, did you loose them due to your inability to work? Did your company simply terminate your employment and rehire you back when you got your work permit back?

This discussion group is really fantastic. Not only that I got a lot of feedback from my post, but I even found others with almost identic issues. Man! Who said internet is only crap?
 
You must log in or register to reply here.
Top