Urgent Question Regarding H1 v/s EAD. Pls advice.

R

RoaringBull

Registered Users (C)
Urgent Question. Pls advice.

Here is the situation, pls advice.

I worked with company A till January 2004. The H1B of company A is valid till February 2005 so is my current stamped visa. Company B has applied for my H1B transfer through normal processing and I have joined them end of January 2004 based on the H1B receipt notice.

Company B has also applied for my I140 in March 2004 and I485 in April 2004 based on an approved labor. In May, company B got an RFE for the H1B transfer asking for the company contract with the client and to prove that this is job is a high tech.

In June, I got my EAD. Now company B is saying that they want to withdraw the H1B petition without replying to the RFE as we have the EAD and hence do not need H1B. Now I am totally confused and not sure what to do.

Pls advice me if this will have any implications in the future.

Thanks
~R
 
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you should have 140 approved and 485 pending more than 180 days to eligible for using EAD. since you applied in march 2004,I dont think it is safe to use EAD now. If you use EAD before 140 approval, you will be in a big Trouble!

My advice to you is ur RFE looks simple.Ask the company B to send the required docs to prove the company B contract with the client and also the verification of job category. are you working in IT field?
reply to RFE and working on h1 is the safest thing to do.

incase if something goes wrong with this h1 from company B, always you can go back to company A and use the old h1 or can do h1 transfer to company C based on the h1 .
if you use EAD, there is no way you can go back to h1 status.
so use your h1 till you cross the 180 days deadline after the 140 approval.

Good luck!
 
Hi,
Answering to your questions:

--------------------------------------------------------------------------------

Here is the situation, pls advice.

I worked with company A till January 2004. The H1B of company A is valid till February 2005 so is my current stamped visa. Company B has applied for my H1B transfer through normal processing and I have joined them end of January 2004 based on the H1B receipt notice.

Company B has also applied for my I140 in March 2004 and I485 in April 2004 based on an approved labor. In May, company B got an RFE for the H1B transfer asking for the company contract with the client and to prove that this is job is a high tech.

Ans: If your company withdraws your H1B without approval notice obtained by INS, then you are forced to work on their EAD. Suppose, your I140 gets rejected(which no one wants), then your EAD becomes invalid and you become out of status immediately. You wont even have a H1B to bank on, incase of emergency.

When your company cant even respond to a RFE for a H1B, do you really think that they would go ahead and work on your I140 if there is going to be an RFE? I am too suspicious..

Ask the company as why they cant respond to the RFE? Can you also let me know the exact wording on the RFE to give you a better picture of what my understanding is???

I would advice you, to ask them to respond to RFE or to be on the safer side, do a H1B with another company(you can pay it from your pocket and keep it a side, so that incase if your I140 has a problem, you can go stay back in USA on the new H1B approval notice).. You need to act really fast or it might cause you a 3 year to 10 year ban for reentry into USA..

Hope I am clear..

Want GC Soon :)
 
RoaringBull said:
Here is the situation, pls advice.

I worked with company A till January 2004. The H1B of company A is valid till February 2005 so is my current stamped visa. Company B has applied for my H1B transfer through normal processing and I have joined them end of January 2004 based on the H1B receipt notice.

Company B has also applied for my I140 in March 2004 and I485 in April 2004 based on an approved labor. In May, company B got an RFE for the H1B transfer asking for the company contract with the client and to prove that this is job is a high tech.

In June, I got my EAD. Now company B is saying that they want to withdraw the H1B petition without replying to the RFE as we have the EAD and hence do not need H1B. Now I am totally confused and not sure what to do.

Pls advice me if this will have any implications in the future.

Thanks
~R
Click to expand...
This will not have any implication - H1b is a separate application and GC is separate. Yes but pros and cons of getting on EAD is something - you would like to think about.
 
RoaringBull said:
Here is the situation, pls advice.

I worked with company A till January 2004. The H1B of company A is valid till February 2005 so is my current stamped visa. Company B has applied for my H1B transfer through normal processing and I have joined them end of January 2004 based on the H1B receipt notice.

Company B has also applied for my I140 in March 2004 and I485 in April 2004 based on an approved labor. In May, company B got an RFE for the H1B transfer asking for the company contract with the client and to prove that this is job is a high tech.

In June, I got my EAD. Now company B is saying that they want to withdraw the H1B petition without replying to the RFE as we have the EAD and hence do not need H1B. Now I am totally confused and not sure what to do.

Pls advice me if this will have any implications in the future.

Thanks
~R
Click to expand...

What is current job you are doing? Because I am hearing this kind of RFE to prove this as High tech job first time.

Check the time line. In Jan you joined them after applying for H1. Then you applied EAD along I-485 in April. If they do not answer for RFE They may(will) deny your H1. This may result in worked without authorization from Jan to April. And technically you will be not in status while applying for I-485. If some officer joins the dotted line it may mess up your life. Talk to some good attorney before they make such decisions
 
I am working a Programmer/Analyst in Software field. And I have been here in this country for the last 4 years on H1B.
 
Company B is correct that you don't need the H visa -- you can work under the EAD until (if) the GC is approved.

Some points though:

+EAD will need to be renewed every 9-10 months or so to ensure you can keep working (unless USCIS starts to issue these for more than 1 year at a time).

+Same thing for AP if you will need to travel.

+Cost / inconvenience might make H visa better overall -- depends on how long GC takes.

+With H visa, you have a safety net if GC is denied -- you can continue working under this. Otherwise, you're SOL -- the EAD becomes invalid as soon as the denial happens.

+By not working under the H, you aren't eating up the 6 year max for an H visa.

ETA
 
Roaring Bull,
I guess you are a victim with a company who promises to do Green Card immediately if you join them. I see most of the companies(especially desi companies, who advertise in Sulekha etc), promise and get consultants on trap and get money and when it comes to RFE, go back and give a piece of shit to consultants..

They understand that many are desperate to get their GC's as they are running out their time limit on H1B..

Hence we need to be really cautious when applying with those companies. How big is your company, do they have good profits, do they have a good attorney or hired a desi attorney who tries to learn from your case..

You need to really act immediately buddy!!

Want GC Soon :)
 
love2002 said:
you should have 140 approved and 485 pending more than 180 days to eligible for using EAD. since you applied in march 2004,I dont think it is safe to use EAD now. If you use EAD before 140 approval, you will be in a big Trouble!
Click to expand...

Afaik, this is totally incorrect -- you can use the EAD (or not) as soon as you have it (for any job). This has nothing to do with AC21.

ETA
 
When your company cant even respond to a RFE for a H1B, do you really think that they would go ahead and work on your I140 if there is going to be an RFE? I am too suspicious..

Ask the company as why they cant respond to the RFE? Can you also let me know the exact wording on the RFE to give you a better picture of what my understanding is???
Click to expand...

They probably just think it will be simpler / cheaper to use the EAD and they could be right. There are pros and cons to either approach.

ETA
 
ETA-GC said:
+By not working under the H, you aren't eating up the 6 year max for an H visa.

ETA
Click to expand...

ETA-GC,

Do you mean that when we use EAD, the remaining (6-Curent) years left on H-1 are not used, and if there is any problem in future with EAD, you can go out of country and get your H-1 stamping done for the remaining years? Can you help clarify this? I was of the opinion that if you use EAD and then it gets cancelled, you will have to apply for a new H1 which comes under quota system?

Thanks in advance.
 
Hi Nsr2004,
Here is the answer:

If you are using EAD then your H1B immediately goes out of non-immigrant status and you are using your immigrant status. Suppose your I140 gets denied, then you become out of status immediately.

Now you need to leave the country immediately and then file for a H1B under premium processing and this time you would not be considered as a "Change of Status in USA" and you would be considered "New H1B filing" and that might come under 65000 quota and you need to travel back to India to get it stamped.

This time you have more chances of getting denial on your H1B in India as you cannot fill that "No one has filed Immigrant Petition on your behalf in USA", as US Consulate would know that you had an Immigration Intent. Now you are considered "Prospective Immigrant" and they would deny you very easily..

So think about it..

I want Jharkhandi to also comment on the above..

Want GC Soon :)

ETA-GC,

Do you mean that when we use EAD, the remaining (6-Curent) years left on H-1 are not used, and if there is any problem in future with EAD, you can go out of country and get your H-1 stamping done for the remaining years? Can you help clarify this? I was of the opinion that if you use EAD and then it gets cancelled, you will have to apply for a new H1 which comes under quota system?

Thanks in advance.
 
Want GC Soon said:
Using EAD(even though its valid) before I140 approval is totally risky.. But your wife can work immediately.

Want GC Soon :)
Click to expand...

Lot's of people work on their EAD as soon as they have one -- I don't understand why you think this is risky unless you mean that by not having the H, he has nothing to fall back on?

You do realize that he'd be using the EAD to work with the company which is sponsoring the GC right? If he wasn't then, yes, he'd be jeopardizing the I-140 although he'd still be working legally.

ETA
 
ETA-GC,
You are right since he might have a fall back on H, incase something happens to 140. But working for a different company other than the company filing 140 before it gets approved is risky..

Want GC Soon :)
 
Not an expert but...

In spite of the different views expressed here, there is essentially nothing wrong with using the EAD - if you company withdraws the application for H1B, they just "save" the application fees (and lawyer fees to reply to the RFE). They are not necessarily exploiting you - they are just looking out for ways to save money. You will be in legal status, and perfectly legally working on EAD.

The downside to EAD, which applies to everyone, will still come into play - ambigous situation if I-140 denied, the hassle of getting a new H1B (subject to the cap), and the problem of getting an AP for travelling out of the country. To avoid that, it might be worth it to stay on H1B - but that is something you will have to negotiate with your company (maybe offer to pay for your own H1B visa?)

But, if you get a I-140 Rfe, you are still in legal status till it is denied. Even after that, if you send in a motion to re-open, and your EAD will essentially be preserved.

Good Luck!
DG
 
nsr2004 said:
ETA-GC,

Do you mean that when we use EAD, the remaining (6-Curent) years left on H-1 are not used, and if there is any problem in future with EAD, you can go out of country and get your H-1 stamping done for the remaining years? Can you help clarify this? I was of the opinion that if you use EAD and then it gets cancelled, you will have to apply for a new H1 which comes under quota system?

Thanks in advance.
Click to expand...

Keeping in mind that I'm not a lawyer (and I didn't sleep at a Holiday Inn Express last night :)) -- no this isn't what I meant.

If you switch to EAD, the H is cancelled and you would need to apply for a new one if you lost the EAD (and the annual cap would count against this). If you kept working under the H though, you have a 6 year max (apart from x-year extensions if GC process is under way) and you'd continue eating into this. So I just meant to say that by switching to the EAD, you are no longer using up that 6 year limit.

ETA
 
I have one more question. In case if the company B replies and (unknown for reasons) if the H1B transfer gets rejected, can I use the EAD that time ? What will my status be called from the day the H1B applied and the day H1B denied ?
 
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