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Hello gurus,
I have an approved I-140 and I-485 pending (waiting for dates to become current). Based on approved I-140 I am looking to get an extension on H1B for 3 years (currently on EAD, 6 yrs completed previously on H1B). My central question is - if my 485 is denied for some reason can I still work on I-140-based H1B for the 3 yrs approved?
Any response is appreciated.
Thanks!
Yes you can, provided you maintain your H1b status at the time of denial.
Thanks a lot Kanmani. By maintaining status do you mean having an approved 797 and having a job at the time of denial?
It means you using the approved 797 while you are working somewhere. If you have H1B+EAD as work authorizations and you are not using H1B and instead using EAD then you are no longer in H1B status.Quote:
Originally Posted by ksur23
I will let Kanmani confirm.
Kanmani perhaps you can also specifically clarify if a person who has H1 and EAD both but chooses EAD - does s/he get out of status when 485 is denied?
Interesting.
I am currently on EAD. My plan is to switch jobs in September. Jan 2009 is my PD. It's 50-50 as of now whether I will get GC. The new employer (that I will join in September) is working on my H1B as we speak. The new job is not similar to PERM. So if no GC by September I plan to move based on H1B filed. And I expect a denial eventually based on dissimilar work. At that time I will be on H1B based on I-140 - hoping it will be valid then (I think EAD is not going to be valid).
Q,Quote:
Originally Posted by qesehmk
There is no clear cut rule for this scenario. Attorneys have different opinion on switching over to H1b after denial.
What I am sure about is H1b approved upon I-140 is valid upto its approval period. Once approved H1b is a separated from the underlying I-140/I-485. (unlike EAD)
Let us consider the applicant has AOS as future employment with employer B, but currently working for A extending H1bs' and maintaining exclusively H1b status, even if his I-485 is denied he is allowed to continue his H1b employment.
Am I clear here?
I think that's the bottomline. Thanks Kanmani.Quote:
Originally Posted by Kanmani
So in other words - regardless of status of 485 a candidate should be able to continue to use an H1 as long as it is available.
Yes Q.Quote:
Originally Posted by qesehmk
Also, I am not sure about EAD to H1b after AOS denial.
Thanks a lot both! Appreciate it.
Another quick question on the similar note. If one is working on EAD only (not on H1) can they file H1 at a later point of time ? Would it come under a cap or would it be like regular H1 Transfer ?
Also if 485 gets denied, I understand they will be out of status immediately (since no H1), but can they file H1 immediately on a premium or anything ? Is there any leeway there or they just have to go back ?
Quote:
Originally Posted by ksur23
Yes. One can switch to H1 at any point of time as long as the I-485 is pending and I-140 is not revoked. It is cap exempted.Quote:
Originally Posted by incredible
In a situation of I-485 denial, there is no way to file as cap exempted unless the applicant has remaining period under initial 6 years or redeeming vacation period spent outside usa.
Thanks Kanmani. How much of risk that this puts on some one who is EAD only and not on H1. Is it worth taking that risk ? (especially in an AC-21 scenario)
Quote:
Originally Posted by Kanmani
Considerable percent of EB3-ers have done it successfully.Quote:
Originally Posted by incredible