Working on EAD, Can i file new H1 ?

[smurthy8]

Hi guru's,

My I-485 is pending and currently i am working on EAD. to be on safer side i was curious to know whether i am eligiable to file for new H1 visa and keep it as fall back option in case if my I 485 get rejected.
As i don't want to land in suitation where my I 485 gets rejected and H1 quoto is full for this year. If this happens i will be forced to leave country and wait for one year to come back on new H1 .
Can you please advice. Is it good idea and legal to apply for new H1 and keep it as backup. ? Kindly give your openion.
Thanks

Murthy

 

[LaborBadhi]

Hi guru's,

My I-485 is pending and currently i am working on EAD. to be on safer side i was curious to know whether i am eligiable to file for new H1 visa and keep it as fall back option in case if my I 485 get rejected.
As i don't want to land in suitation where my I 485 gets rejected and H1 quoto is full for this year. If this happens i will be forced to leave country and wait for one year to come back on new H1 .
Can you please advice. Is it good idea and legal to apply for new H1 and keep it as backup. ? Kindly give your openion.
Thanks

Murthy

If you on H1 it is safe to get H1 extended until you get GC.
There is no quota limit for H1B extension.

 

[ginnu]

If you on H1 it is safe to get H1 extended until you get GC.
There is no quota limit for H1B extension.

------the poster is using EAD and cant file H1 extension, one need to be on valid H1 to file H1 extension

 

[tammy2]

------the poster is using EAD and cant file H1 extension, one need to be on valid H1 to file H1 extension

Question 1. Can an H-1B temporary worker “port” under §105 of AC21 (INA § 214(n)) from one employer to another even after the alien’s I-94 or last approved petition has expired as long as he or she is still in a “period of stay authorized by the Attorney General”?
Answer: Yes. Under certain circumstances, an H-1B alien may still be able to port to another H-1B employer even after the alien’s I-94 or last approved petition has expired. In order to port, however, such alien must meet all the requirements of INA § 214(n), including the requirement that the new petition be filed while the alien is in a “period of stay authorized by the Attorney General.” USCIS has previously determined and issued guidance explaining what constitutes a “period of stay authorized by the Attorney General.” One example would be:
Alien is in H-1B status. Employer A timely files a non-frivolous extension of the alien’s H-1B status. Alien’s original petition, approved for Employer A, expires during the pendency of the extension. Alien is then in a “period of stay as authorized by the Attorney General” while Employer A’s extension is pending. Employer B then files new petition and alien wants to port to Employer B. Under INA § 214(n), the alien should be permitted to port because he or she is in a “period of stay as authorized by the Attorney General.”
In other words, porting under INA §214 does not require that the alien currently be in H-1B status as long as he or she is in a “period of stay authorized by the Attorney General.”

above quote is from:
http://www.immigration.com/newsletter1/newac21guidance.pdf

Since above person is in “period of stay authorized by the Attorney General.”
Is it not possible to get H1B.

 

[smurthy8]

Tammy2 thanks for your link and info. It says if i am in "period of stay authorized by AG" then i can port to another new h1 which is slightly confusing. As it doesn't give more details.

My current h1 visa is valid for another one year. But i started to work on EAD for last 3 months. Currently i can't apply for H1 transfer as i have used my EAD, so was thinking to apply for new H1 from my friends company before the h1 quota gets over for this year and have it ready just in case if my I 485 gets rejected then i can start working on this new H1 instead of leaving the country till the new h visa's are available for next year.
In short
Am i eligiable and should i apply now for new h1 visa (not transfer) from another company ?

Thanks

Murthy

 

[tammy2]

Tammy2 thanks for your link and info. It says if i am in "period of stay authorized by AG" then i can port to another new h1 which is slightly confusing. As it doesn't give more details.

My current h1 visa is valid for another one year. But i started to work on EAD for last 3 months. Currently i can't apply for H1 transfer as i have used my EAD, so was thinking to apply for new H1 from my friends company before the h1 quota gets over for this year and have it ready just in case if my I 485 gets rejected then i can start working on this new H1 instead of leaving the country till the new h visa's are available for next year.
In short
Am i eligiable and should i apply now for new h1 visa (not transfer) from another company ?

Thanks

Murthy

Pending AOS is considered as “period of stay authorized by the Attorney General” . But letus wait what others say in this matter. You can also talk to some your attorney.

Apply new H1 means going out of US and coming back. If you are OK with that you can apply a new H1.

 

[ginnu]

Tammy2 thanks for your link and info. It says if i am in "period of stay authorized by AG" then i can port to another new h1 which is slightly confusing. As it doesn't give more details.

My current h1 visa is valid for another one year.
--------------- if your H1 visa stamp is valid and H1 petition is valid then I think you can go out of US to Canada or mexico and while enter US get new I-94 based on H1 visa and I think you can again be on H1 status. Talk to your lawyer.
But i started to work on EAD for last 3 months. Currently i can't apply for H1 transfer as i have used my EAD, so was thinking to apply for new H1 from my friends company before the h1 quota gets over for this year and have it ready just in case if my I 485 gets rejected then i can start working on this new H1 instead of leaving the country till the new h visa's are available for next year.
In short
Am i eligiable and should i apply now for new h1 visa (not transfer) from another company ?
---------------talk to your lawyer

Thanks

Murthy

 

[smurthy8]

Ginnu,

Thanks for your info.
My current h1 and I-94 expiry date is dec 2006. My question is as i am working on EAD and for some reason I 485 gets rejected, then can i go out and re-enter using the same current H1 (is it valid after using EAD ?) or
Do i need to apply for new H1 which is subject to Quota?
If the answer is yes for first question then i am fine and i don't have to worry now. if not,
then i have to rush & apply for new h1 before the quota gets full for this year and once h1 approved i can go out and re enter .
This all precaustionary measure i want to take so that i can be on safer side just in case my I 485 get rejected.

 

[ginnu]

Ginnu,

Thanks for your info.
My current h1 and I-94 expiry date is dec 2006. My question is as i am working on EAD and for some reason I 485 gets rejected, then can i go out and re-enter using the same current H1 (is it valid after using EAD ?) or
Do i need to apply for new H1 which is subject to Quota?
-------------- you need to discuss with good lawyer.I read in some old Memo from USCIS H.Q that if one has valid H1 then person can enter on H1 (I dont have the link to Memo) What I will do is go to Canada or Mexico give my I-94 to Canada or Mexico immigration (they will not ask for it) and when enter US will get new I-94 based on H1 visa stamp and again be on H1 status . talk to your lawyer if that is still possible.

If the answer is yes for first question then i am fine and i don't have to worry now. if not,
then i have to rush & apply for new h1 before the quota gets full for this year and once h1 approved i can go out and re enter .
This all precaustionary measure i want to take so that i can be on safer side just in case my I 485 get rejected.