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prashanthz

H1B Laid Off - Options

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My current employment was terminated  on April 15 2019,  and  am awaiting new employment so I could file my H1 within the 60 day grace sometime by end of May. I have my I-140 approved, with priority date Mar 2017.
 
Considering H4 EAD might not be applicable going forward and I might lose out on that option, what If
  1.  I go ahead and file for a H4 change of status and H4 EAD application ASAP(by staying in US) and I find a new job, could the new employer file a H1 petition(in premium as its currenlty applicable) on my behalf anytime before end of May even when my H4 application and EAD is in process (which might  approx take 3-7 months to approve)?
  2. Would this be considered H1-H1 transfer and what about the H4 change of status and H4 EAD application that's still in process, does it need to be withdrawn post my new H1 approval?
  3. If I do not find a new job by May, I'm planning on getting my H4 visa stamped in Canada during the last week of May(as I anyways have a tentative vacation planned then), would this speed up my H4 EAD application compared to me staying within US and waiting for H4 change of status? 
  4. Also in this case if my H4 Chenge of status and EAD are still pending with USCIS, post my return to US with approved H4 visa stamp, Should I
  •         withdraw my H4 change of status application with USCIS?
  •         update my existing H4 EAD application with my new I-94?

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1 - Yes they apply H1B in premium processing

2 - No need to withdraw

3 - No H4 EAD will take its own pace. I may be wrong but H4 and H4 EAD results will be same time. Everytime when I apply for H4 and H4 EAD for my wife, I get them both approved at same time. This may not be case in all other 100% cases/

4 - I cannot say...

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Reading your situation, my wife went through the same situation and I would like to share some learnings...and the steps you have to follow:

  1. Apply for H4-EAD now. It will take 2-3 months for both H4 & EAD approval. Both happen together. There is no PP here.
  2. If you find a new employer anytime before your H4-EAD approval, just ask the new employer to file for the H1 transfer as usual. Let the attorney know that your H4-EAD is pending. They will have to withdraw the H4-EAD immediately. 
  3. If you don't withdraw H4-EAD, let's suppose you get your H1 approved & start working, now when your H4-EAD gets approved you will automatically move to H4 status and your H1 becomes invalid. This is known as "Last Action Rule".
  4. If your H4-EAD is approved before getting a job or the new employer files for the H1 transfer, then its the usual process to move from H4 to H1. However, here you can start working immediately since you will have the EAD. When the H1 gets approved, your status automatically moves to H1. You can just keep continuing to work without any break.

The quickest way to move to H4 is to leave the country and return on H4. You will have to get a new H4 visa stamp. You can then apply for your EAD after your return.

I suggest start your H4-EAD NOW and let it remain applied when you are looking out for a new job. Just view these as independent processes and you withdraw/drop one when you apply for the other. You may also land up with a job who is not willing to sponsor H1 then your EAD will come handy. 

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