Switching from H1B to EAD

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berrybird

Registered Users (C)
Guys,

The question I have is if its possible to switch from H1B to EAD for the same sponsoring company even though my H1B is valid through 2005 i.e. do I have to do any paperwork. I understand I will loose some of the benefits of being on H1 but at the moment I am a AC21 candidate i.e. approved I-140 and > 180 days on the I-485. The reason I want to do this swicth is two fold:

1. It gives me and the company more flexibility in terms of number of hours I work i.e. I could work as a consultant for the employer rather than a full time employee which is attractive to the company as they are going thru tough times and layoffs are round the corner I think.

2. If I'm then using my EAD to work i.e. now I am in AOS pending status (and have abandoned my H1 status) they decide to lay me off. I am presuming they don't have to inform BCIS about cancelled H1B i.e. they won't be violating the LCA ? The reason this is important is that I have sometimes seen on Murthy etc revoking an H1 triggers to revoking an I-140 even though company does not want to revoke the I-140. Wondering if this is safer or company revokes the H1B irrespective of the situation.

Any thoughts would be appreciated.

Berrybird
 
Originally posted by berrybird
Guys,

The question I have is if its possible to switch from H1B to EAD for the same sponsoring company even though my H1B is valid through 2005 i.e. do I have to do any paperwork. I understand I will loose some of the benefits of being on H1 but at the moment I am a AC21 candidate i.e. approved I-140 and > 180 days on the I-485. The reason I want to do this swicth is two fold:

1. It gives me and the company more flexibility in terms of number of hours I work i.e. I could work as a consultant for the employer rather than a full time employee which is attractive to the company as they are going thru tough times and layoffs are round the corner I think.

2. If I'm then using my EAD to work i.e. now I am in AOS pending status (and have abandoned my H1 status) they decide to lay me off. I am presuming they don't have to inform BCIS about cancelled H1B i.e. they won't be violating the LCA ? The reason this is important is that I have sometimes seen on Murthy etc revoking an H1 triggers to revoking an I-140 even though company does not want to revoke the I-140. Wondering if this is safer or company revokes the H1B irrespective of the situation.

Any thoughts would be appreciated.

Berrybird
Click to expand...

H1B and I-140 are two different and unrelated petitions. cancelling one should have no bearing on hte other unless the employer requests BCIS to cancel all pending applications for a specific beneficiary.
If you want to change your hours or accept different salary, using EAD is probably easier. Otherwise your employer need to file for an H1 amendment which he may or may not be willing to do.
One downside of EAD is that if for some reason your AOS is denied, you automatically go out of status. If you are still on H1, you remain in H1 status even after AOS is denied (as long as your have the H1 job).
If you decide to use EAD, contact your HR department and file a new I-9 employment eligibility verification form. Use your EAD as the document to establish work authorization. Form that day on you wil be considered on EAD. Remember to use AP to return to US after any travel abroad.
 
I am also in the same boat . My sponsoring company does'nt want to loose me,at the same time they are struggling with this economy.
I thought of the same way of joining another company on an EAD and rejoin my existing sponsoring employer on an EAD (part time),loosing my H1 status.
Can you email me your contact Nos....and we can talk offline as to how we can accomplish as per INS rules thru the help of expert advice on this forum or thru inputs from our respective attorneys.
Thanks
 
berrybird

Moving from H1 to EAD does not entail someone to work less hours or get less payment. In order for I-485 processing, you need a full-time employment. So it doesn't matter if you are on H1 or EAD when working for the same company. The only time it makes difference is when the salary mentioned on LCA and labor certification is different. H1 salary should be equal or more than the one mentioned on LCA and EAD salary should be close to the one mentioned on labor certification. Most of the time, the salary mentioned on LC is more than the one on the LCA. If that is true, you should be paid more on EAD than on H1. Check your LC and LCA.

Coming to H1 & I-140, it is not true hat I-140 gets cancelled if H1 is withdrawn. Some companies are ignorant of immigration laws. They either do it intentionally (retaliate) to withdraw both or do it out of ignorance. If they petition for H1 withdrawal only, INS would cancel H1 only. An immigration officer would never bother to initiate on his own to go through the employees file and check if he got an I-140 approved on his name already and then cancel it. That's not how it works. If a request comes for H1 cancellation, they would cancel it and at the time of I-485 processing, they might issue an RFE about I-140 validity. Then you will have the oppurtunity to explain that your H1 was cancelled but you are still employed with the same company using EAD.
 
One more thing:

If for some reason (to spite you or ...) your 140 filing company does revoke your 140 (afaik, they can't revoke 485, as you are filing it, not them), the revokation can not be the sole reason for 485 rejection, esp if revokation happens after 180 days of 485.

This is something that came up very recently (last 1 month I thnk). So don't worry about 140 revokation.
See: http://www.murthy.com/UDrevapp.html

However also see this: http://www.murthy.com/ukac21.html

- nik.
 
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