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srini1976
03-16-2009, 10:25 PM
H1B Extension/Amendment or EAD with reduced no. of hours.
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I have been working in the US for the past 5 1/2 years and is a straight forward case with no status violations.

I am currently on H1-B for an american employer(products based) since 2 and half years and the same company sponsored for my green card. My previous employer is also an american company(big 4 consulting).

I would be completing 6 years on H1-B this October 2009.
I have a valid visa stamped until the same period(October 2009).

Starting Feb 2009 my employer has announced a 20% cut in base salary for all fulltime employees. And as such we are on a new work week(4 days / 32 hours / week).
My salary is well above the prevailing wage despite 20% cut.

Also I have an approved EAD valid until Oct 2010 and AP valid until Nov 2010. My I-140 is approved. I was already getting the proffered salary(as per Perm labor position). But because of the cut I get about 20% less now.

I sent out an email asking my company attorney if we need to file for an H-1B amendment and have not received a response. But today the attorney sent us the H1-B & H-4 extension applications(beyond 6 years) and in the applications I can see the no. of hours working as 32 and the period of dates as 10-xx-2009 to 10-xx-2012.

My spouse is on vacation and will return using valid H-4 visa in May 2009.

Questions:
(1) Is an H1-B amendment filing necessary/not necessary if I plan to move to EAD in May 2009?
(2) As H-1 & H4 extension related expenses are anyway paid by the employer, However - do I really need to extend H-1B & H-4 with reduced hours?
(3)As my wife returns in May. The very next day I will fill in a new I-9 form and move to EAD.
While working on EAD do I need to work for 40 hours? My current pay stub clearly shows the no. of hours/week as 32.

With this 32 hour work week:
(4) Does it make sense to extend H1-B or should I begin using EAD?
(5) If I begin using EAD. What happens if USCIS issues an RFE for EVL (for proffered position working fulltime for 40 hours)?

Please comment on the pros and cons.

Thanks.

Cheers,
Srini

srini1976
03-19-2009, 11:36 AM
Please find answers below which may be useful for similar cases.

Based on my case above:

Questions:
(1) Is an H1-B amendment filing necessary/not necessary if I plan to move to EAD in May 2009? No.

(2) As H-1 & H4 extension related expenses are anyway paid by the employer, However - do I really need to extend H-1B & H-4 with reduced hours? No.

(3)As my wife returns in May. The very next day I will fill in a new I-9 form and move to EAD.
While working on EAD do I need to work for 40 hours? No.
My current pay stub clearly shows the no. of hours/week as 32.

With this 32 hour work week:
(4) Does it make sense to extend H1-B or should I begin using EAD?
This is important.
Different attorneys have their own opinion on this. But our attorney says as below:
If on EAD: Attorney said it is safer to have H1-B extended(even beyond 6 years based on I-140 approval and pending 485) as in the case of 485 denial, the remaining period of H1-B extension is still valid and would be useful to switch back to H1-B and remain in the country and continue work.
Can someone confirm this from other attorneys - please?

Also - if there is chance of 485 denial only then he recommended extending H1-B (beyond 6 years). Otherwise do not waste money for H1-B extensions and can use EAD/AP combination.

(5) If I begin using EAD. What happens if USCIS issues an RFE for EVL (for proffered position fulltime for 40 hours)?
No problem as GC is for future Job. Also with EAD - I can have gaps between jobs. If laid off from company A(GC sponsoring employer). I can work at any other place(example: KFC), and if an RFE is received for EVL for future or current - No issues with current job. An EVL or an offer letter for GC position is all needed.


Hope this clarifies/confirms few questions.

Cheers,
Srini