Use EAD instead of H1B with the same employer?


zak74

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Hi all,

My PD EB2-I Nov 2008. I've applied for I-485, EAD, AP etc.. this month.

It looks like retrogression will happen in May or June and I may not get my GC this year

but may get EAD.

1. After getting EAD, is it okay to switch from H1B to EAD with the same employer?

2. With EAD, do I still need to get paid every month (including bench period) to maintain status?

3. What are the pro's and cons of using EAD instead of H1B while GC is pending?

Z

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1) Yes, you can switch from H1B to EAD with the same employer

2) not sure

3) pro:

no visa stamping hassle. no client letter requirements,

cons: u need to keep renewing your EAD everyyear.

if 485 gets rejected, you ll lose status. Need to go back to India immediately.

Krish, Thanks for the reply.

How much does it cost to renew EAD?

What if I don't use EAD and I-485 gets rejected? In that situation also I will lose H1B and have to back, right?

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Talk to your lawyer about when you would be considered to be using EAD. It's not as straightforward to "switch" from H1 to EAD as you think. Basically, you need to fall out of status on H1, then you won't have any status and if you work, then you technically are using EAD. So, while on a bench, you will be out of status, but not really "on EAD" since you are no working. It is also not clear to me if you would be considered back in H1 status when you are working for the same employer again. You won't be booted out of the country for not maintaining H1 status, that's for sure. However, your employer might still be on the hook for giving you work as if you were in status on H1.

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Check with your immigration attorney with specifics about your case. here is why.

I recently applied for my H1-B extension. With the recent advancement of PD, I also proceeded to file my 485/EAD/AP. So I asked my attorney if i get the AP and I have a valid H1-B what are the implications. This is a jist of his reply

1. Both EAD&H1 or AP/H1 can co-exist. When one is active - the other is DORMANT. So today I am with my employer on my H1. When I receive the EAD-AP (combined now) card, it will be invisible untill I use it.

2. If I leave the country and on re-entry if I use my H1 - things will remain status quo. If I use the AP, then the immigration officer will write "parolee" on the I-94. I am then expected to inform my employer about my EAD and also provide them a copy. My H1-B is now DORMANT. Should things change, new job etc, the H1-B can be re-instated, meaning it will continue to exist when we apply for H1 with different employer(transfer) and the term continues.

3. with EAD active (and pending GC)- we have to revew it every year - unlike the H1 which would be valid for 3 years.

4. If we do not use the EAD - then we still have to renew it after the first year but on the first renewal it extends indefinitely(no one year limit). I am awaiting a second opinion on this point for additional confirmation.

5. My attorney also strongly recommended renewing the H1 and keeping it active always untill obtaining the GC. Of course there is a price - consultate interviews and periodic visa renewals

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2. There is a difference between being admitted and being paroled. When you are admitted, you gain immigration status. When you are paroled, you don't really get a different immigration status - it's kind of like you got permission to leave and come back, but pretend it never happened. That's why many lawyers believe that you continue in H1 status after being paroled on H1. However, this is a definitely a grey territory.

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Check with your immigration attorney with specifics about your case. here is why. I recently applied for my H1-B extension. With the recent advancement of PD, I also proceeded to file my 485/EAD/AP. So I asked my attorney if i get the AP and I have a valid H1-B what are the implications. This is a jist of his reply 1. Both EAD&H1 or AP/H1 can co-exist. When one is active - the other is DORMANT. So today I am with my employer on my H1. When I receive the EAD-AP (combined now) card, it will be invisible untill I use it. 2. If I leave the country and on re-entry if I use my H1 - things will remain status quo. If I use the AP, then the immigration officer will write "parolee" on the I-94. I am then expected to inform my employer about my EAD and also provide them a copy. My H1-B is now DORMANT. Should things change, new job etc, the H1-B can be re-instated, meaning it will continue to exist when we apply for H1 with different employer(transfer) and the term continues. 3. with EAD active (and pending GC)- we have to revew it every year - unlike the H1 which would be valid for 3 years. 4. If we do not use the EAD - then we still have to renew it after the first year but on the first renewal it extends indefinitely(no one year limit). I am awaiting a second opinion on this point for additional confirmation. 5. My attorney also strongly recommended renewing the H1 and keeping it active always untill obtaining the GC. Of course there is a price - consultate interviews and periodic visa renewals

Is it true that most of these rules are not applicable to the dependent on EAD. For instance, a dependent wife doesn't have to tell her employer if she used AP and changed status to EAD.

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