H1B Transfer While 485 is Pending

[Praslee]

Need help on this question. We have just filed 485 (Aug 18th receipt date, Sep 30 2008 Priority date). We both, primary and dependent are on H1Bs. Question is, can the dependent transfer his H1b to a new company and if so what should we do while our 485 is being processes. Do we notify USCIS (ironically, they will be approving the H1B transfer)?

[Jagan01]

Need help on this question. We have just filed 485 (Aug 18th receipt date, Sep 30 2008 Priority date). We both, primary and dependent are on H1Bs. Question is, can the dependent transfer his H1b to a new company and if so what should we do while our 485 is being processes. Do we notify USCIS (ironically, they will be approving the H1B transfer)?

Hi Gurus,

I am current in Aug bulletin and had filed my I-485 for the first time. I have received the receipt notices. However, I have still not received the finger printing notice. Pretty much everyone on trackitt with TSC has received finger printing notices. Many have also gotten it done. I am worried.

Is there any place I can check as to whether the finger printing notices have been sent out or not ?

[qesehmk]

Need help on this question. We have just filed 485 (Aug 18th receipt date, Sep 30 2008 Priority date). We both, primary and dependent are on H1Bs. Question is, can the dependent transfer his H1b to a new company and if so what should we do while our 485 is being processes. Do we notify USCIS (ironically, they will be approving the H1B transfer)?

Praslee,

H1 and GC are two different things. You may change as many jobs prior to GC approval as you want to. It won't be see in an unfavorable light by USCIS.

What matters is - who ever sponsoiring the GC should be able to say that the job GC was sponsored for will be available once your GC is approved and you must have the intent to accept that job post GC.

[suninphx]

Need help on this question. We have just filed 485 (Aug 18th receipt date, Sep 30 2008 Priority date). We both, primary and dependent are on H1Bs. Question is, can the dependent transfer his H1b to a new company and if so what should we do while our 485 is being processes. Do we notify USCIS (ironically, they will be approving the H1B transfer)?

Is there any specific reason for dependent to be on H1? Why not use EAD?

[Spectator]

Is there any specific reason for dependent to be on H1? Why not use EAD?

sun,

I can understand the desire to retain valid H1B status where it is possible to do so.

It guards against a potentially difficult situation in the unlikely event the I-485 is denied.

If EAD is used, the person would lose their H1B status and be relying on a period of authorized stay granted while the I-485 remains pending. That authorized stay is not considered legal status.

In the event that the I-485 was denied, the period solely in authorized stay would count as time out of status towards the maximum 180 days allowed by 245(k).

If the number of days exceeded 180 days (which it likely would), then the person would not be eligible to file a new I-485 without first departing the USA and returning in a valid non-immigrant status. That might not be possible if, for instance the primary GC had been approved and dependent status was required for readmission (admittedly, not necessarily the situation in this case).

On the other hand, if the person had remained in H1B status during the entire period the I-485 was pending prior to denial, then they would likely be below the 180 day limit and could immediately file another I-485 application (assuming the reason for denial was fixable and did not require departure from the USA to do so).

I agree that in the vast majority of cases, using EAD or not should make no difference, since very few I-485 are denied. Where it is possible, remaining in H1B status is the safer course of action.

[suninphx]

sun,

I can understand the desire to retain valid H1B status where it is possible to do so.

It guards against a potentially difficult situation in the unlikely event the I-485 is denied.

If EAD is used, the person would lose their H1B status and be relying on a period of authorized stay granted while the I-485 remains pending. That authorized stay is not considered legal status.

In the event that the I-485 was denied, the period solely in authorized stay would count as time out of status towards the maximum 180 days allowed by 245(k).

If the number of days exceeded 180 days (which it likely would), then the person would not be eligible to file a new I-485 without first departing the USA and returning in a valid non-immigrant status. That might not be possible if, for instance the primary GC had been approved and dependent status was required for readmission (admittedly, not necessarily the situation in this case).

On the other hand, if the person had remained in H1B status during the entire period the I-485 was pending prior to denial, then they would likely be below the 180 day limit and could immediately file another I-485 application (assuming the reason for denial was fixable and did not require departure from the USA to do so).

I agree that in the vast majority of cases, using EAD or not should make no difference, since very few I-485 are denied. Where it is possible, remaining in H1B status is the safer course of action.

Spec,

Thanks for response. My belief is that dependent can make best use of EAD, as wide range of options could be available without restrictions H1 imposes. It's personal choice though.

[Praslee]

Spec,

Thanks for response. My belief is that dependent can make best use of EAD, as wide range of options could be available without restrictions H1 imposes. It's personal choice though.

First thing, we haven't got the EAD yet.

Also as we file h1 transfer, do we need to inform uscis about it?

[Praslee]

Agreed. But I was asking if I need to inform the folks processing my 485 that I have transferred my h1 since filling the 485?

[Spectator]

Agreed. But I was asking if I need to inform the folks processing my 485 that I have transferred my h1 since filling the 485?

Praslee,

I don't believe there is any requirement to do that. The non-immigrant and immigrant processes are entirely separate.

See Q's original answer to your question.