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Attorney_23

H1B vs. EAD While I-140 is Pending

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This week, Murthy Law Firm attorneys will answer questions regarding the pros and cons of remaining on H1B while one's I-485 is pending, versus using an EAD.   

Rules for Topic of the Week Threads:

1. Attorney's postings contain general information only and are not a substitute for case-specific legal advice.

2. The attorney will answer only those questions which relate to the main subject. If you have a question on some other issue, please start a new thread in the appropriate forum section.

3. The attorney will not necessarily answer every question posted and may provide a single answer to a group of similar questions.

4. Please do not provide information which would identify any specific company, university or individual.

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Will there be any advantage in remaining on H1B when we have EAD while I-485 is pending ?

 

If some one have downgraded from EB2 to EB3 and got the EAD with pending I-485 application in future if the EB2 dates become current can he use the EB2's dates while he is started using the EAD not on H1B anymore ?

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Hello - I am on a L1A visa which expires in March 2021. At the same time, my dates of filing [the final action date still isn't current through] for I-485 have become current. I intend to apply for an EAd and AP. Should I still file for my L1A extension before March 2021?

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My 485 & i140 downgrade is in process while

My Visa is expiring Mid Jan, need to file an ( LCA not yet filed) extension and not sure how it would go with the recent wage changes.( Wage Level 4) salary is of Level1

What is the time frame I would need to wait until I move to EAD, how do i tackle this issue , can i apply in normal with wage level 1 and wait for EAD, what happens if my employer is not willing to apply for extension with these salaries?

Thanks!

 

 

Edited by rocky_NNC

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Hello

here are the questions:

1. what are top advantages of keeping H1 active (with stamping) vs  EAD with AP?

2. In a given scenario, if H1 stamping is denied at foreign consulate, can one return with AP?

thank you

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Questions with regards to H1B and EAD: 

While returning from India if I use my AP what happens to the status of my H1B assuming I'm with the same company. I believe if I switch to another company I would need to do so via EAD? So in my case, as an example, my H1B expires on Feb 2023 and I'm in the process of downgrading from EB2 -> Eb3 to get the EAD. Assuming I get the EAD and I travel to India I plan to use the AP so I dont need to go for stamping. What would this mean in terms of my status?

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On 10/15/2020 at 9:08 PM, binoca82 said:

Once I switched to EAD, how do I go back to H1 ? Is it possible within USA or reentry required ?

In the situation where you were working pursuant to H1B, then you obtained an EAD based on a pending AOS, and used the EAD to work, to get back into H1B status typically you will need to travel and re-enter pursuant to a valid H1B visa. 

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On 10/15/2020 at 9:15 PM, Janarthananb said:

Will there be any advantage in remaining on H1B when we have EAD while I-485 is pending ?

 

If some one have downgraded from EB2 to EB3 and got the EAD with pending I-485 application in future if the EB2 dates become current can he use the EB2's dates while he is started using the EAD not on H1B anymore ?

H1B provides a safety-net in case your AOS is denied. Regarding the EAD, that document only provides work authorization, it does not interfere with the ability to upgrade/downgrade an I-140 petition. 

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On 10/15/2020 at 10:58 PM, niraj710 said:

Hello

here are the questions:

1. what are top advantages of keeping H1 active (with stamping) vs  EAD with AP?

2. In a given scenario, if H1 stamping is denied at foreign consulate, can one return with AP?

thank you

H1B provides a safety-net in case your AOS is denied. If your H1B visa is denied for classification reasons, you should be able to use a valid AP to re-enter the U.S. 

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Hello Everyone,

I do have questions regarding the correct Petition Number in DS 160 for my spouse(H4).

H1b Background: 
I have applied for an H1b extension in March and got approved for a long duration. 
Later on, in between the pandemic situation, my Job location and client got changed in June.
Then I applied for Amendment and it got approved with the same duration as what I have in extension I797.

But in between Extension and Amendment; 
After extension approval, my spouse filled DS160 and booked an appointment but it got canceled due to the Pandemic.
Now again we booked an appointment but here we booked with the same DS160 in which we mentioned petition number of Extension approval I797.

Here is my question: 
1. Do we need to update DS160 (New DS160) and make a change with Amendment Petition Number? 
2. or not need to update DS160 with New petition Number because it's just a change of location, not actual approval.
3. is there any impact of it on my spouse Interview and profile?

Please suggest me, it will be really helpful for me.

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Hello,

I got laid off from my job but my end date in the company is December 2020. However the company agreed to file for my EB2 to EB3 downgrade as a last favor for me. My application has also been submitted to USCIS. While my  I485 is in processing how many months after my last date will I have to find a new job?

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On 10/15/2020 at 9:08 PM, binoca82 said:

Once I switched to EAD, how do I go back to H1 ? Is it possible within USA or reentry required ?

When using an EAD based on a pending AOS, to get back into H1B status you will need to travel and re-enter pursuant to a valid H1B visa. 

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On 10/15/2020 at 9:15 PM, Janarthananb said:

Will there be any advantage in remaining on H1B when we have EAD while I-485 is pending ?

 

If some one have downgraded from EB2 to EB3 and got the EAD with pending I-485 application in future if the EB2 dates become current can he use the EB2's dates while he is started using the EAD not on H1B anymore ?

The EAD is solely a work authorization document and has no bearing on upgrades/downgrades. The advantage of maintaining H1B while the AOS is pending is that it provides a safety net if the AOS is denied. 

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On 10/15/2020 at 10:58 PM, niraj710 said:

Hello

here are the questions:

1. what are top advantages of keeping H1 active (with stamping) vs  EAD with AP?

2. In a given scenario, if H1 stamping is denied at foreign consulate, can one return with AP?

thank you

It will depend on the reason for denial, however generally, if the H1B visa application is denied, you can use the AP to enter. 

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On 11/4/2020 at 12:58 AM, vas12 said:

Hello,

I got laid off from my job but my end date in the company is December 2020. However the company agreed to file for my EB2 to EB3 downgrade as a last favor for me. My application has also been submitted to USCIS. While my  I485 is in processing how many months after my last date will I have to find a new job?

You should call our office and speak to one of our attorneys. 

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My date is current with labor and I-140 approved of employer A but I am no longer working with that employer A for last 2 years. I worked with them for 9 years.

With employer A what are my options? Do I need to transfer H1B and join them? Can employer A file my I-485 and EAD for future position and then I can join them on EAD once I get it and meanwhile continue working with employer B?

If I join employer A, does it need to be for similar position as my labor and I-140? If different allowed, how much different and if anything else needed in this case?

Without be able to join employer A, what are all my options with other employers and which is fastest?

Than you.

 

 

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On 11/5/2020 at 4:16 PM, Attorney_22 said:

The EAD is solely a work authorization document and has no bearing on upgrades/downgrades. The advantage of maintaining H1B while the AOS is pending is that it provides a safety net if the AOS is denied. 

I know that lots of lawyers say that, but with all due respect I believe that's a smoke screen. The person using the H1 generally works in the same job the AOS is for, so if AOS is denied it is rather likely that the H1 will also get revisited and possibly revoked.

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On 10/15/2020 at 9:08 PM, binoca82 said:

 

Hi Attorney,

I am currently in US and have an approved H1B petition til June 15 , 2021. My 6 years will be over by that time and and my PERM is still under processing.
Currently I have applied for the H4 and H4 EAD with future effective date Apr 30 , 2021 .In case the H4 doesn't get approved by that time , then how can I stop my H1B 
clock to proceed further and save 1 months in my H1B 6 years balance to re-apply when my I-140 gets approved .


1. Is there a way I can request USCIS to stop my H1 clock by Apr 30 , 2021? 

2. Will there be any issue to file H1 extension once I receive I140 if I don't save any time on my current H1?

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Hi,

I am currently in US and have an approved H1B petition til June 15 , 2021. My 6 years will be over by that time and and my PERM is still under processing.
Currently I have applied for the H4 and H4 EAD with future effective date Apr 30 , 2021 .In case the H4 doesn't get approved by that time , then how can I stop my H1B 
clock to proceed further and save 1 months in my H1B 6 years balance to re-apply when my I-140 gets approved .


1. Is there a way I can request USCIS to stop my H1 clock by Apr 30 , 2021? 

2. Will there be any issue to file H1 extension once I receive I140 if I don't save any time on my current H1?

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On 11/7/2020 at 9:49 PM, JoeF said:

I know that lots of lawyers say that, but with all due respect I believe that's a smoke screen. The person using the H1 generally works in the same job the AOS is for, so if AOS is denied it is rather likely that the H1 will also get revisited and possibly revoked.

Hi JoeF, firstly, let me thank you for taking such as active interest on the forum. You've been an active participant for many years and and it is great to have you. While looking through some old posts I came across your comment and feel it is worth clarifying. Generally, this forum is for non-case specific information, and therefore, the general guidance regarding the EAD/H1B is that an H1B can provide a safety net that someone on EAD will not have if there is an issue with the AOS. It is true that most AOS cases, if done correctly, do not need that safety net. It is also a reality that if there is something sufficiently serious in someone's past that could cause an AOS to be denied, then it also is likely to be an issue for the nonimmigrant status. However, it is not a smoke screen. In practice we've seem many more AOS cases denied due to errors by USCIS, then an issue of inadmissibility/removability. The number of Motions we've had to file for clients due to a USCIS mistake is extensive, and the few individuals that have maintained H1B are thankful they did. As I am sure you know, a Motion does not place an applicant back into status, and therefore, if they are only in a POAS and using the EAD, they then need to watch the clock to make sure they do not trigger a bar for unlawful presence.  The forum is not really the best place to go into all these details, but I hope you now understand the basis for the general guidance. Thank you for being a part of this.  

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