H1B visa status if 485 denied

[ksur23]

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!

[Kanmani]

Yes you can, provided you maintain your H1b status at the time of denial.

[ksur23]

Thanks a lot Kanmani. By maintaining status do you mean having an approved 797 and having a job at the time of denial?

[qesehmk]

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.

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?

[ksur23]

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).

[Kanmani]

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.

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?

Q,

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?

[qesehmk]

Q,
.. Once approved H1b is a separated from the underlying I-140/I-485. (unlike EAD)

I think that's the bottomline. Thanks 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.

[Kanmani]

I think that's the bottomline. Thanks 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.

Also, I am not sure about EAD to H1b after AOS denial.

[ksur23]

Thanks a lot both! Appreciate it.

[incredible]

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 ?

Thanks a lot both! Appreciate it.

[Kanmani]

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 ?

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.

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.

[incredible]

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)

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.

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.

[Kanmani]

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)

Considerable percent of EB3-ers have done it successfully.