should I use my EAD (NIW related)

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niw seeker

Registered Users (C)
everyone,
I filed concurrent 140-NIW and 485 last year and also applied EAD. I am holding H-1B in a non-profit organization. Now I got a good chance to enter a big company, but they don't quite like to transfer my H-1B. My question is:
1) if I use my EAD to work there and my NIW is denied later, what steps do i take to maintain status?
2) is it really hard to transfer no-cap H-1B to cap H-1B? why doesn't the company hesitate about this?
Thanks.
 
It is risky to use EAD before your i 140 is approved, cos once you use ead, your h1 becomes invalid, and you need to reapply for h1, it could also take time and could potentially put you out of status..contact ur lawyer and refer to the different posts on such niw cases here..be very careful..best wishes..
 
niw seeker said:
everyone,
I filed concurrent 140-NIW and 485 last year and also applied EAD. I am holding H-1B in a non-profit organization. Now I got a good chance to enter a big company, but they don't quite like to transfer my H-1B. My question is:
1) if I use my EAD to work there and my NIW is denied later, what steps do i take to maintain status?
2) is it really hard to transfer no-cap H-1B to cap H-1B? why doesn't the company hesitate about this?
Thanks.
Click to expand...

(1) If you use your EAD and NIW is denied, you will face big problem. There are ways to keep status (H1, B1,), but not very easy. Suggest you stay in H1b.
(2) I do not see or aware the difficulty to transfer H1b. The company should be able to do it for you.
 
thank you guys for replying. I'll push the company hard.
several more questions:
1) what's earliest possible date for me to work in the company? I suppose it's March 08, the date the new 20k H-1b become available. Is my understanding right?
2) Is the "premium processing service" still there?
3) will my relocation to the new company hurt my pending NIW?
so much hassle to worry, thanks again.
 
niw seeker said:
thank you guys for replying. I'll push the company hard.
several more questions:
1) what's earliest possible date for me to work in the company? I suppose it's March 08, the date the new 20k H-1b become available. Is my understanding right?
2) Is the "premium processing service" still there?
3) will my relocation to the new company hurt my pending NIW?
so much hassle to worry, thanks again.
Click to expand...

(1) INS have not release the info about the starting date for that special 20k H1b. March 08 is the date the law will be in effect. we have to stay tuned on INS website.
(2) still there.
(3) I do not think so, as long as you still work in related field of your NIW.

by the way, If you are transfer your H1b, you need not wait for the cap.
 
Last edited by a moderator:
niw seeker said:
everyone,
I filed concurrent 140-NIW and 485 last year and also applied EAD. I am holding H-1B in a non-profit organization. Now I got a good chance to enter a big company, but they don't quite like to transfer my H-1B. My question is:
1) if I use my EAD to work there and my NIW is denied later, what steps do i take to maintain status?
2) is it really hard to transfer no-cap H-1B to cap H-1B? why doesn't the company hesitate about this?
Thanks.
Click to expand...

I would like to add another question as a followup to the above concern.
If the primary applicant continues to use his H1 status, can the spouse who is on H4 uses the EAD for her job? Or will the usage of EAD by either of them will be considered as used.
 
sulip said:
I would like to add another question as a followup to the above concern.
If the primary applicant continues to use his H1 status, can the spouse who is on H4 uses the EAD for her job? Or will the usage of EAD by either of them will be considered as used.
Click to expand...
NO. the usage of EAD by spouse is considered separately. that is, if you are primary, and on H1. Your spouse could use EAD, if your 140 is denied, you need to change the spouse back to H4. but the Primary better not to use his/her EAD.
 
I think if the spouse uses her EAD, and at later time if the NIW is denied, she would have to leave the US within 10 days. I think she can't switch back to H-4 in the US, though I'm not sure about this. Could anyone shed some light on it?
 
Can non-cap H1B be transferred to cap H1B?

Can you explain "if you are transfer your H1b, you need not wait for the cap." As far as I know, non-cap H1B can not be transferred to cap H1B.
 
niw seeker said:
I think if the spouse uses her EAD, and at later time if the NIW is denied, she would have to leave the US within 10 days. I think she can't switch back to H-4 in the US, though I'm not sure about this. Could anyone shed some light on it?
Click to expand...

Do not know anything about this. Will appreciate if you can supply some resource or links about this.
 
BYXXCH said:
Can you explain "if you are transfer your H1b, you need not wait for the cap." As far as I know, non-cap H1B can not be transferred to cap H1B.
Click to expand...
You are right on this. (except the person had a cap H1b before.)
 
after review these replies, I am still not clear the following question:

if spouse use EAD card before I140 and I 485 are approved, and if the I140 or I485 is denied later, can the spouse change back to H4? Let's assume the primary petitioner is holding H1 visa all the time.

In addition, the primary petitioner can also appy EAD and AP for emergency. He should still have valid H1 if I140 or I 485 is not approved some how, right?

this may be a hole in the law, or not? :confused:

So, to sum up, the best way to do it is apply I140 and I485 concurrently and apply EAD and AP together for yourself and your spouse. For your self, just use the EAD and AP for emergency; for your spouse, use EAD for work. She/he can change back to H4 as long as you are in valid H1 status.

Please comments on these. Thanks!
 
If you go on I-485 derived EAD, and the I-485 is denied for whatever reason, you will lose status automatically. From everything that I have read, you will then need to leave the country and reenter on another status. My advice is to maintain non-immigrant status until all the issues (pending I-140 etc.) are ironed out. Once the I-140 is approved, as I understand it, EB I-485's are rarely denied. These days, who knows?
 
we understand that for the primary petitioner you 'd better not use EAD card till your I140 or I485 is approved. But, how about your spouse, can he/she use EAD card? giving that you keep your valid H1 status all the time. :confused:
 
forxp said:
we understand that for the primary petitioner you 'd better not use EAD card till your I140 or I485 is approved. But, how about your spouse, can he/she use EAD card? giving that you keep your valid H1 status all the time. :confused:
Click to expand...

I don't think it matters whether you are primary or dependent. You cannot apply for a change of status in the US once your I-485 based EAD priviledges are lost.
 
ok, allow me to clear up this question.
I just consulted a lawyer. The spouse could switch back to H-4 without leaving the US, as long as the main applicant maintains H-1.
 
niw seeker said:
ok, allow me to clear up this question.
I just consulted a lawyer. The spouse could switch back to H-4 without leaving the US, as long as the main applicant maintains H-1.
Click to expand...

Thanks for the update. This is completely contrary to what my lawyer said. I'll try and bug the guy again.
 
This maybe the problem. There maybe no law said that Spouse can't switch back to H4 once he/she use his/her EAD. No law said he/she can either. This could be a grey area. This is why different attorney has different explanations.

Anyone has difinite answer? :(
 
grs2003

Spouse can switch to H-4 as long as the primary holds H-1 status. But the spouse need to leave US and he/she should the visa stamped.
 
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