Spuose on H1. Laid Off with 5 days notice. EAD not guaranteed

[enggr]

Friends/Gurus,
My wife and I (both on H1B) got our EAD last month through July filiing. But the EAD might get revoked as my I-140 has a major RFE with good chances of failure. The I-140 as well as EAD are through my employer.

Today my wife's employer laid her off with 5 calendar day notice saying that they are laying off people due to slowing corporate business. My wife has an offer from an employer in a different state. The coming monday(2 days from now) we are going to ask the new employer to do the H1B transfer immediately. But because of the policies of the new employer things may not move swiftly. We are worried about the status and H1B.

Couple of my friends are saying that there's no immediate threat to her status as the EAD is valid until it's revoked in case (if I-140 RFE didn't get cleared)

If the current employer sends a H1B cancellation the coming Wednesday to INS how will the H1B transfer with the new company happen? Will the INS reject the transfer saying that the old H1B is already canceled? What will happen to her status. In that case does my wife has to wait till next April to try for another H1B?

Another option is she changing to H4 and then coming back to H1. But my attorney said it will take 4-7 months for H4 transfer and there's no premium processing in it. Any further requests (like H4 to H1) transfer won't be entertained till the H4 transfer is completed (takes 4 - 7 months as I mentioned before). We don't want to go through that as we heard that some are even waiting for 1 year for H4 transfer.

Please help me with your answers/comments. I really need all of your help. Thanks in advance.

 

[lprkhoj]

Couple of my friends are saying that there's no immediate threat to her status as the EAD is valid until it's revoked in case (if I-140 RFE didn't get cleared)

They are correct! EAD is based off I485 which is off I140. Until I140 is denied, EAD is valid.

If the current employer sends a H1B cancellation the coming Wednesday to INS how will the H1B transfer with the new company happen? Will the INS reject the transfer saying that the old H1B is already canceled? What will happen to her status. In that case does my wife has to wait till next April to try for another H1B?

What is important is a valid status. You don't have to have a valid h-1B before filing for transfer. Even if the current employer informs USCIS of revoking h-1b, your wife still has a valid status, that of AOS pending (and not EAD, as it seemed from your post). Her new H-1b may be filed when the new employer does so - and it would not be subjected to quota limit. So her status is not a problem - unless I140 is denied soon which might/might not be the case. Concern might be regarding employment authorization. If the new employer files for h-1b within 10 days of quiting the present job, then she is fine. She can get on board once the H-1B receipt notice is received. However, if that's not the case (ie transfer filed after 10 days), I am not sure if she can still join with just the receipt notice. It might be possible - USCIS is considerate in this regard provided some valid status is maintained in the interim (which shouldnt be an issue here). But consult a lawyer. OR she may join using EAD while waiting for H-1B - which *should* be filed under PP to ensure quicker peace of mind.

Another option is she changing to H4 and then coming back to H1. But my attorney said it will take 4-7 months for H4 transfer and there's no premium processing in it. Any further requests (like H4 to H1) transfer won't be entertained till the H4 transfer is completed (takes 4 - 7 months as I mentioned before). We don't want to go through that as we heard that some are even waiting for 1 year for H4 transfer.

Its safer but not required at the moment. However, you might want to keep the paper work prepared.