To use EAD card or not? Suggestions needed.

A

Addr485

Registered Users (C)
Gurus, I need your valuable opinions.

I submit my 140/485 and get EAD cards for me and my spouse. We are both in a valid H1B now. Some articles suggest it is better to keep using H1B even if you had EAD, because you are still in a valid H1b in case your case gets any problem. But if you use EAD, you lose your status to work as soon as your case gets rejected.

But one of my friends gives another opinion. His point is: even you lose your status of EAD, you still can get a new H1b by primary processing in 15 days, because you still have unused days on your 6-year limit. And your H1b had been counted in past 6 years, so it will not be counted in the new low yearly H1-b cap to prevent you from getting a new one. And as you have not reach the 6 year limit, you do not have to go out for one year…, etc. In general, there will be no hurt to use EAD if you still have many days on your current H1b. And you should use your EAD as early as possible to save the remaining days on your H1b. So you can get these valuable days on a new H1-b in case the worst happens.

Is there any flaw in his point? Any input will be welcome.

Thanks
 
Addr485 said:
Gurus, I need your valuable opinions.

I submit my 140/485 and get EAD cards for me and my spouse. We are both in a valid H1B now. Some articles suggest it is better to keep using H1B even if you had EAD, because you are still in a valid H1b in case your case gets any problem. But if you use EAD, you lose your status to work as soon as your case gets rejected.
---- that is correct becase if I-140 is denied then EAD AP I-485 all get denied, if I-140 gets denied and later due to any reason I-485 gets denied then you dont have any status if you are not on H1 status, H1 status has advantages
But one of my friends gives another opinion. His point is: even you lose your status of EAD, you still can get a new H1b by primary processing in 15 days, because you still have unused days on your 6-year limit.
And your H1b had been counted in past 6 years, so it will not be counted in the new low yearly H1-b cap to prevent you from getting a new one. And as you have not reach the 6 year limit, you do not have to go out for one year…, etc.
-------------- wrong advice, if you use EAd you invalidate H1 status and if you need H1 then it has to be filed NEW H1 and if that NEW FRESH H1 gets approved you will not get any I-94 attached with approval and you have to go out of US get H1 Visa stamp and then enter on H1 status, you will not be subject to cap if you wre counted in last 6 years

In general, there will be no hurt to use EAD if you still have many days on your current H1b. And you should use your EAD as early as possible to save the remaining days on your H1b.
So you can get these valuable days on a new H1-b in case the worst happens.
----- by using EAD you dont SAVE the remainig time on H1

Is there any flaw in his point? Any input will be welcome.
----- go to your lawyer and clear before you use EAD, but if your I-140 gets approved and I-485 is pending 180 days you are safe to use EAD, as I have not read many posts of I-485 denial if you dont have any arrests, crimes , fraud
Thanks
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ginnu said:
advice, if you use EAd you invalidate H1 status and if you need H1 then it has to be filed NEW H1 and if that NEW FRESH H1 gets approved you will not get any I-94 attached with approval
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It's not that clear-cut. If you get an EAD/AP and leave the US and re-enter with the AP and use the EAD to work, then you have not invalidated the visa stamp (since you were not in H-1 status) and you should be OK once you leave and re-enter back in H-1 status.

by using EAD you dont SAVE the remainig time on H1
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Why not? Especially if you did not use the H-1 visa to enter. The quibble I would have with the original poster is that with AC21 and 7th year H-1s, saving H-1 time is of significantly less value than in the past.

if your I-140 gets approved and I-485 is pending 180 days you are safe to use EAD
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Absolutely; I've seen a lot more I-140 denials due to attorney's poor filings lately. Once the I-140 is approved it is a different ball game and much, much safer.
 
TheRealCanadian said:
It's not that clear-cut. If you get an EAD/AP and leave the US and re-enter with the AP and use the EAD to work, then you have not invalidated the visa stamp (since you were not in H-1 status) and you should be OK once you leave and re-enter back in H-1 status.
.
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RealCanadian, I did not follow that comment by you.

I've H1 stamped until mid of 2006 and also have valid AP/EAD.
I'm going to my home country next month. My 140 is approved
and 485 is pending < 180 days.

I intend to use AC-21 next year after 180 days of 485[not yet descided to be on H1 or use EAD next year] Should I use AP @ POE or my H1 to enter US in Dec 04?
 
It is for before we can enjoy the AC21

Thanks for your input, ginnu and TheRealCanadian,

Let me make it a little bit clearer. I have not reached the line to enjoy AC21 yet. I fully understand that I would be in a much better position if I get my 140 approved and have 485 in for more than 180 days. But unfortunately it is not my current status. Now let us just discuss the case what if the worst happen with the 140/485, before I can enjoy the AC21 and 7th year benefit.

If I used my EAD/AP, yes, I have to apply for a new fresh H1b to continue to work in US if the EAD/AP becomes invalid by the case. According to pinnu, CIS would not give a new i-94 with the new H1b approval any more (I would like to know if this is a sure thing). That means I have to go out get a H1 stamp. But anyway I do not have trouble to go to Canada and get a H1 visa stamp there. So my new fresh H1B will be another 6 year or what? Is that why pinnu says “----- by using EAD you don’t SAVE the remainig time on H1”?

Fast_gc_seeker, I think we need the answer for the same question: “Before we reach the line to enjoy AC21, is it better to keep H1b, or is it better to invalid H1b by using EAD/AP?” We knew that keeping H1b alive has some benefit. I would like to explore what would be the disadvantage of using EAD if any.

Welomce any thinking on this and Thanks a lot!
(Please do not suggest me to ask lawyer. I do not have easy access to my lawyer service. And I believe our discussion is much helpful than my non-responsive lawyer)
 
fast_gc_seeker said:
I intend to use AC-21 next year after 180 days of 485[not yet descided to be on H1 or use EAD next year] Should I use AP @ POE or my H1 to enter US in Dec 04?
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Does not make any difference in this case - whether you use H1 or AP. AP does not invalidate your H1 status - therefore, no problem of switching to another H1 job.
 
Addr485 said:
Thanks for your input, ginnu and TheRealCanadian,

Let me make it a little bit clearer. I have not reached the line to enjoy AC21 yet. I fully understand that I would be in a much better position if I get my 140 approved and have 485 in for more than 180 days. But unfortunately it is not my current status. Now let us just discuss the case what if the worst happen with the 140/485, before I can enjoy the AC21 and 7th year benefit.

If I used my EAD/AP, yes, I have to apply for a new fresh H1b to continue to work in US if the EAD/AP becomes invalid by the case
------ if due to any reason your EAD becomes invalid may be I-140 denied or I-485 gets denied then you will not have any status in US to work or stay
According to ginnu, CIS would not give a new i-94 with the new H1b approval any more (I would like to know if this is a sure thing).
----- you can get I-94 attached with H1 extension/transfer approval if you file H1 ext or transfer if you are on valid H1 status and file H1ext before I-94 gets expired
That means I have to go out get a H1 stamp. But anyway I do not have trouble to go to Canada and get a H1 visa stamp there.
--- if you are from Canada then you can get H1 stamp from Canada if your home country is not Canada and you apply for H1 stamp in Canada and it gets rejected then you cant enter US from Canada you have to go directly to your home country from Canada to get H1 stamp

So my new fresh H1B will be another 6 year or what?
---- NO 6
Is that why pinnu says “----- by using EAD you don’t SAVE the remainig time on H1”?

Fast_gc_seeker, I think we need the answer for the same question: “Before we reach the line to enjoy AC21, is it better to keep H1b, or is it better to invalid H1b by using EAD/AP?” We knew that keeping H1b alive has some benefit. I would like to explore what would be the disadvantage of using EAD if any.
------ keep valid H1 status, use EAD only after I-140 approval and I-485 pending more than 180 days
Welomce any thinking on this and Thanks a lot!
(Please do not suggest me to ask lawyer. I do not have easy access to my lawyer service. And I believe our discussion is much helpful than my non-responsive lawyer)
Click to expand...
 
Why using EAD will not save me remaining time on H1b?

Thanks for you input again, ginnu

I would like to ask more about your answer on this:

"So my new fresh H1B will be another 6 year or what?
---- NO 6 "

If not another 6 years, how long will it be? Shouldn't it be the remaining days on my unused H1b up to 6 years? Why you said using EAD will not save me remaining time on H1b?

thanks
 
I am also interested in answer to this q. I think we need to get appropriate regulations and read between lines....what makes me believe that we should be able to use remaining time is....

1. If one holds a H1 for a year and then goes out of the country and then comes back, the H1 clock starts ticking again. And, USCIS seems to treat that the invidual can only be eligible for another 5 years (2 + 3 most likely?). And we don't start at next 6 year term.

2. Another general opinion is, if one holds an H1 during preceding 6 years, any further extensions are not subject to cap.

If the both the above are true.. why can't we use EAD, save H1 time and then apply for remaining H1 time and use that?

thanks,


Addr485 said:
Thanks for you input again, ginnu

I would like to ask more about your answer on this:

"So my new fresh H1B will be another 6 year or what?
---- NO 6 "

If not another 6 years, how long will it be? Shouldn't it be the remaining days on my unused H1b up to 6 years? Why you said using EAD will not save me remaining time on H1b?

thanks
Click to expand...
 
PradK has a great summary. And that is exactly why my question come out.
More opinion from all are welcome.
Let us not try to jump to a quick and easy conclusion without a fully exploration of reasoning.

Thanks
 
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