Transfer H1B when working on EAD

N

nayak328

Registered Users (C)
Hi All, I have a simple question.

Have an H1B from previous employer 1 valid till 2009. The passport stamp has expired.

Started working with employer 2 from July 2008 on EAD (~3months with employer 2).

Now I am want to get the H1B from employer 1 transferred to employer 2, go out of country and get passport stamped. This is for marriage reason.

Can this be done? Or employer 2 will have to file for a new H1B.

Thank you
 
Is it possible that I will loose my current status if I change status back to H1B?? Will I have to start GC processing again??

Thanks
 
nayak328 said:
Is it possible that I will loose my current status if I change status back to H1B??
------------------------one can be on H1 and AOS pending.
Will I have to start GC processing again??
------------------------NO
Thanks
Click to expand...

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Thanks Ginnu.
But this is what my company lawyer replied:
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As we discussed yesterday, you are no longer eligible for an H-1B “transfer” change-of-employer petition because you joined "MyCompany" using your EAD card instead of pursuant to an H-1B transfer petition at that time. However, we are discussing whether "MyCompany" might file an H-1B petition for you, in which case you would need to use the approval notice to apply for a new H-1B visa and return to the U.S. in H-1B status to activate it. As we also discussed yesterday, doing so would result in abandoning your pending I-485 application because under those circumstances, you would not be in H-1B status at the time you depart the U.S., and this is a requirement in order to have the option of travelling on either AP or an H-1B visa and maintain both your H-1B status and pending I-485 application.
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nayak328 said:
Thanks Ginnu.
But this is what my company lawyer replied:
----------------------------------------------------------------------------

As we discussed yesterday, you are no longer eligible for an H-1B “transfer” change-of-employer petition because you joined "MyCompany" using your EAD card instead of pursuant to an H-1B transfer petition at that time. However, we are discussing whether "MyCompany" might file an H-1B petition for you, in which case you would need to use the approval notice to apply for a new H-1B visa and return to the U.S. in H-1B status to activate it. As we also discussed yesterday, doing so would result in abandoning your pending I-485 application because under those circumstances, you would not be in H-1B status at the time you depart the U.S., and this is a requirement in order to have the option of travelling on either AP or an H-1B visa and maintain both your H-1B status and pending I-485 application.
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Click to expand...
your lawyer is right about traveling part. THat is why I said "as long as you'll get H1 stamp for reentry" in my 1st reply(Yoiu cannot "transfer" in the US).

I think the impact on your I485 depends on how to interpret the rule in this particular case, but reading between the lines, I can get the point of what the lawyer is saying.... i.e. you leave the US without AP when you are NOT on H1 status. He meant that there might be a possibility that your I485 be considered abanadoned by doing so.
 
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Sh**
So this means that whether I get H1B transferred or get a new H1B it does not matter. I can still loose my I-485 status if I travel abroad using H1B. My old H1B is also out of status (stamp expired and not using it for employment).

That's great, I have to go through the GC process again!!!!

What if I re-join the company I had h1B petition from? Is there a chance my I-485 will be abandoned if I travel outside and come back using H1B?

Thanks
 
nayak328 said:
Sh**
So this means that whether I get H1B transferred or get a new H1B it does not matter. I can still loose my I-485 status if I travel abroad using H1B. My old H1B is also out of status (stamp expired and not using it for employment).

That's great, I have to go through the GC process again!!!!

What if I re-join the company I had h1B petition from? Is there a chance my I-485 will be abandoned if I travel outside and come back using H1B?

Thanks
Click to expand...

1 let the present employer file H1 for you.
2 file for AP and once AP gets approvbed then go out of US with H1 approval
3 get H1 visa stamp and enter US on H1B status.
 
As having been said above, obtain AP. that's the safest choice. You still can try your luck without AP, but unless time is critical and no other way, I'd get AP.
 
Thanks.
I already have an AP expiring in Jan 09. Should I let it expire and apply for renewal when I get H1B??
 
You have to maintain your H1 after you get back to the US if you want your spouse to be in legal H4 status. As long as you maintain H1 status(not using EAD to work), you don't need AP for travelling, but if I were you, I'd apply AP again just in case.
 
Hi, Sorry one more question:
If I get H1B from my current company, I can travel to Canada and get passport stamped. Then later I can go to India and get H4 visa for my wife using the H1B and visa stamp.
While returning to India I can use my valid AP.

Is there something wrong in this scenario???

Thanks
 
Why do you need to use AP to enter when you have a valid H1 ?
Entering with AP doesn't void H1 as a work permit, but it makes you a parolee. Whether H4 status with a parolee who entered the US with AP and is working under H1 is valid or not is kind of questionable.
Talk to a lawyer, but I remember that Cronin memo said those who entered the US with AP was a parolee(not H1) and I also remember attorney Oh's website had the similar statement.
 
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nayak328 said:
Hi, Sorry one more question:



If I get H1B from my current company, I can travel to Canada and get passport stamped.

--------- you can
Then later I can go to India and get H4 visa for my wife using the H1B and visa stamp.
---------------------you can
While returning to India I can use my valid AP.
-----------------You dont need AP to enter India
Is there something wrong in this scenario???

Thanks
Click to expand...

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All I want to do is avoid filing for GC again. I know the rule is to maintain H1B status along with EAD to avail of the opportunity to travel on either H1B or AP. Since I didn't maintain my H1B status, I think its possible USCIS will consider that I am abandoning my I-485 when I travel abroad and return back using my new H1B.
I just hope I get lucky with immigaration people at POE when I return back on new H1B status.
Thanks
 
Well, you don't have to restart GC process, assuming you have an AP when you leave the US and you are qualified to AC21.
 
if your I485 is pending more than 180 days, your I485 remains valid even though you move the company.
By having AP, your I485 application is not considered abandoned even though you travel.
 
nayak328 said:
Sorry GotPR, I don't understand. I have AP. What do you mean by qualified to AC21?
Click to expand...


AC21 is to change a employer if your I-140 is approved and I-485 is pending more than 180 days AND new employer is ready to give you a permanent job offer letter that is sent to USCIS to invoke AC21 with pending I-485. With AC21 you don’t need to start GC process again if you meet the above criteria (I-140 approved and I-485 pending more than 180 days)

*** Don’t confuse AC21 with AP or H1

You are saying you don’t maintain H1 status as you are using EAD. You are using EAD for work but your status is AOS (adjustment of status pending).
You have valid AP in hand why do you worry about abandonment of GC while you go out? If you have valid AP in hand before you go out of you don’t abandon your GC process (if enter before AP expiry date or with H1 visa stamp)
You can enter back to US with H1 (by getting H1 visa stamp) and that is better option. OR by AP if any problem in Visa stamping.
 
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