Use of AP & H-1 job change after reentrance

[NIW9258]

Currently I am the H-1 holder who works at school. I applied NIW (still waiting) by myself and got AP. have a question here:

I understand that I can keep my current H-1b legally with working for the same employer(school) but not using EAD after reentrance by using AP, but What if I change to another employer later, which will apply new H-1 for me? Am I be fine to keep the new H-1 legally? Thanks for any reliable info.

 

[jllag1]

Currently I am the H-1 holder who works at school. I applied NIW (still waiting) by myself and got AP. have a question here:

I understand that I can keep my current H-1b legally with working for the same employer(school) but not using EAD after reentrance by using AP, but What if I change to another employer later, which will apply new H-1 for me? Am I be fine to keep the new H-1 legally? Thanks for any reliable info.

Yes, you can still keep working on H1B for your employer even after entering on AP. But to avoid any ambiguity, use H1 visa to enter US so that you get I-94 based on H1.

If you decide to go to another employer, your new employer can initiate a H1B transfer. You can start working for your new employer while the transfer is going through. You do not need to wait for that. Just make sure that if you change jobs, your work is still in NIW area (if your petition is modelled on current job).

 

[NIW9258]

Thanks Jllag1 for your info. Yes, I definitely will try H-1 stamp first, AP is my back-up. MY concern is that there is a question in the application form when you apply for H-1 stamp, which asks "Have you ever apply for immigration before?" Of course I did. I am afraid that is the reason the VO will reject me.

Yes, my new job is related to my NIW field. But people keep talking that once change job, in my case, I'm in Parole status, that means I have to use EAD with new employer, and I couldn't swith to H-1 non-immgrant status. The H-1 new company applied for me is useless. I did lots of research, but INS just mentioned in its 2000 memo that it's legal to keep/extend H-1 with the same employer if you use AP enters, but didn't provide the clear address on the job change issue. I'm so unsure.

The worse secenario, if I have to use EAD (by NIW) for working at new company, can I cocurrently apply for Labor Certificate GC for my backup? I am not sure how this dual intent works? Thanks for any info.

 

[memsg]

Thanks Jllag1 for your info. Yes, I definitely will try H-1 stamp first, AP is my back-up. MY concern is that there is a question in the application form when you apply for H-1 stamp, which asks "Have you ever apply for immigration before?" Of course I did. I am afraid that is the reason the VO will reject me.

H1-B is a dual intent visa. That means you may have immigration intent. It says so clearly on the USCIS website under H1B. Your H1B visa stamping should be OK.

Yes, my new job is related to my NIW field. But people keep talking that once change job, in my case, I'm in Parole status, that means I have to use EAD with new employer, and I couldn't swith to H-1 non-immgrant status. The H-1 new company applied for me is useless. I did lots of research, but INS just mentioned in its 2000 memo that it's legal to keep/extend H-1 with the same employer if you use AP enters, but didn't provide the clear address on the job change issue. I'm so unsure.

The worse secenario, if I have to use EAD (by NIW) for working at new company, can I cocurrently apply for Labor Certificate GC for my backup? I am not sure how this dual intent works? Thanks for any info.

 

[jllag1]

Yes, my new job is related to my NIW field. But people keep talking that once change job, in my case, I'm in Parole status, that means I have to use EAD with new employer, and I couldn't swith to H-1 non-immgrant status. The H-1 new company applied for me is useless. I did lots of research, but INS just mentioned in its 2000 memo that it's legal to keep/extend H-1 with the same employer if you use AP enters, but didn't provide the clear address on the job change issue. I'm so unsure.

--> Again, you can extend/use your H1B even if you enter on AP. Also, the consensus says that even if you use EAD, you can still apply to transfer/extend your H1 status. But as I said, to avoid any problems, use H1 to enter US and don't use EAD. If you need to switch jobs, ask your new employer to initiate "transfer" of your H1 status. Tell them that you really need to be in H1 as NIW petitions are so subjective. It is not a straight forward case like labor cert based 140.

The worse secenario, if I have to use EAD (by NIW) for working at new company, can I cocurrently apply for Labor Certificate GC for my backup? I am not sure how this dual intent works? Thanks for any info.

--> Your new company or any company can initiate labor cert for you while your NIW is pending. Again, if you let your H1 status lapse, if NIW gets denied, you will be without any status until you file 485 (or get any other status). Depending on NIW with no backup status if not recommended. Have you already filed 485?

 

[mimihu]

Niw9258

I am in exactly same situation with you, except that my case is EB1-OR. I used AP last summer and kept working with the same employer with H1. Last month I joined a new employer. They filed a new H1 for me 4 months ago but the processing is too slow. I couldn't wait, so used EAD to work. Even the lawyer is not sure whether my old H1 can be transferred.

 

[jllag1]

I am in exactly same situation with you, except that my case is EB1-OR. I used AP last summer and kept working with the same employer with H1. Last month I joined a new employer. They filed a new H1 for me 4 months ago but the processing is too slow. I couldn't wait, so used EAD to work. Even the lawyer is not sure whether my old H1 can be transferred.

Somebody correct me if I am wrong. You can work for 270 days after you file for "transfer" of H1B while the transfer is in progress. That would make it 9 months.

 

[TTS]

Yes you are correct.

NIW9258, don't worry about the question in the Form DS156-"Have you filed an immigrant petition?", Last year I got my H1B visa stamp while waiting for my NIW petion and I answered "Yes" to that question. They never questioned about it and visa staming was smooth.

 

[NIW9258]

Thanks for ALL your help on clarifing my confusion. I want to confirm one thing about AP entry at the POE - If I didn't get H-1 stamp from pessimestic side, I still could enter U.S. with keeping my H-1 status by telling INS inspector that I'm willing to stay with my H-1B (info from this forum). But is there any USCIS link I can access to print out and prove to INS inspector in case he's ignorant about this regulation because I don't want to use AP to cause future ambiguity. Thanks in advance!

BTW, I don't undertand why self-petition NIW is employment based application? It's well-known that NIW doesn't need any sponsorship and has nothing to do with employer.

 

[jllag1]

Thanks for ALL your help on clarifing my confusion. I want to confirm one thing about AP entry at the POE - If I didn't get H-1 stamp from pessimestic side, I still could enter U.S. with keeping my H-1 status by telling INS inspector that I'm willing to stay with my H-1B (info from this forum). But is there any USCIS link I can access to print out and prove to INS inspector in case he's ignorant about this regulation because I don't want to use AP to cause future ambiguity. Thanks in advance!

BTW, I don't undertand why self-petition NIW is employment based application? It's well-known that NIW doesn't need any sponsorship and has nothing to do with employer.

You really do not need to tell anything to POE inspector. Show your AP and be on your way. There really are no points to be scored by arguing anything with inspectors.

You are right. NIW is self sponsored (though your employer can joint petition, if I am not wrong). But sometimes the nature of your petition lends itself to your current job.