Reply H1 RFE or Withdraw and be on EAD?

[GCDo]

I have EAD ( July 07 fiasco).
My company still applied for my H1 extension.
After one month I have got a big RFE where USCIS needs

From my company:
SOW, Service agreement, itinerary of services, purchase Orders etc.
signed letter from the the client.

From me:
Last 3 months pay stubs and education evaluation

Pay stubs and educational evaluation I can provide without any issues.
The client is a direct client of my company and its a huge account for them.
I am not sure whether my company is gonna give all what is requested by the USCIS.

My question to gurus is:
Shall I tell my company to withdraw the H1 extension petition.?
Will it have any adverse impact on my I-485 filing, if I withdraw the H1-extension ?

[hopelessGC]

I think the decision has to be yours after careful consideration of pros/cons and consultation with your lawyer.

Do you have a straight-forward I-485 case? If yes, then EAD may be a good option.

If you are a 100% certain that H1-B extension is not going to be approved, then you always have a fall back on EAD.

Check this thread as it may help your decision making process

http://immigrationvoice.org/forum/showthread.php?t=24545

[zCool]

This has been discussed ad-nauseum !
IF your original 6 yrs are over there is NO difference being on H1b or EAD
IF you've already applied and they've asked bunch of stuff then just go and and reply, worst thing will be they will deny then you go on EAD.. you are safe either way


I have EAD ( July 07 fiasco).
My company still applied for my H1 extension.
After one month I have got a big RFE where USCIS needs

From my company:
SOW, Service agreement, itinerary of services, purchase Orders etc.
signed letter from the the client.

From me:
Last 3 months pay stubs and education evaluation

Pay stubs and educational evaluation I can provide without any issues.
The client is a direct client of my company and its a huge account for them.
I am not sure whether my company is gonna give all what is requested by the USCIS.

My question to gurus is:
Shall I tell my company to withdraw the H1 extension petition.?
Will it have any adverse impact on my I-485 filing, if I withdraw the H1-extension ?

[saileshdude]

This has been discussed ad-nauseum !
IF your original 6 yrs are over there is NO difference being on H1b or EAD
IF you've already applied and they've asked bunch of stuff then just go and and reply, worst thing will be they will deny then you go on EAD.. you are safe either way


Even if 6 years are over, there is a difference in being on H1 or EAD. Some attorneys believe that I-485 denial will result in immediate cancellation of currently approved H1 (i.e. H1 approval obtained based on approved I-140 ). But some attorneys believe that you continue to be on H1 until it expires or the company withdraws it. As it is a grey area, it is always safer to go the H1 route.

[zCool]

Even if 6 years are over, there is a difference in being on H1 or EAD. Some attorneys believe that I-485 denial will result in immediate cancellation of currently approved H1 (i.e. H1 approval obtained based on approved I-140 ). But some attorneys believe that you continue to be on H1 until it expires or the company withdraws it. As it is a grey area, it is always safer to go the H1 route.

Like I said, it's been discussed a million times before and then some..
I will quote verbatim from Neufield memo from 2005 that says whole reason for person being here after 6 yrs is Pending 485. When 485 is denied they send a letter saying get out in 10 days. Now one can take the risk and try to convince immigration officers that 485 is denied but h1b is valid and all but once again, it's NOT GREY AREA. It's some attornies taking difference interpretation, None of these scenarios have been put to test ..
So there really ISN't any difference coz your risk is same whether you are on EAD or/AND h1..

More importantly, does anyone among has stamina and desire to wait another 10 yrs in line fresh?

[saileshdude]

Like I said, it's been discussed a million times before and then some..
I will quote verbatim from Neufield memo from 2005 that says whole reason for person being here after 6 yrs is Pending 485. When 485 is denied they send a letter saying get out in 10 days. Now one can take the risk and try to convince immigration officers that 485 is denied but h1b is valid and all but once again, it's NOT GREY AREA. It's some attornies taking difference interpretation, None of these scenarios have been put to test ..
So there really ISN't any difference coz your risk is same whether you are on EAD or/AND h1..

More importantly, does anyone among has stamina and desire to wait another 10 yrs in line fresh?

If you can please post an excerpt of the memo or a link you are talking about where it is specific enough to state in words that "H1 obtained using an approved i-140 or LC will be revoked immediately as a result of I-485 denial" , it will really help. Otherwise the discussions that you are talking about were based on each attorneys interpretation of AC21 laws. I had talked to Fragomen lawyers about this and they mentioned that H1 would still be valid. Whereas as per Ron Gotcher H1 will be cancelled immediately. One of my friends asked murthy and they also mentioned that H1 remains valid.

[chanduv23]

If you can please post an excerpt of the memo or a link you are talking about where it is specific enough to state in words that "H1 obtained using an approved i-140 or LC will be revoked immediately as a result of I-485 denial" , it will really help. Otherwise the discussions that you are talking about were based on each attorneys interpretation of AC21 laws. I had talked to Fragomen lawyers about this and they mentioned that H1 would still be valid. Whereas as per Ron Gotcher H1 will be cancelled immediately. One of my friends asked murthy and they also mentioned that H1 remains valid.

When your 485 gets denied - you have an option to file for MTR. If the denial is not right, then your MTR should resolve it.

Now, I don't understand how people are getting scared about a denial? It is like, trying to please yourself and convincing yourself, and present urself in the best possible ways to USCIS so that USCIS will think "This guy is really SOMETHING, he understands that once 485 is denied he has no options and wants to play it safe, very good"

Does your denial say "get out of the country" or "if this is a mistake please file MTR"

Mistakes do happen. People have to pursue strongly.

Play it safe - but to what extent? Dive into deep waters, you will figure out a way.

Bottomline - it is choice - if you want to use h1b u can, if u want to use EAD u can.

[morchu]

Wrong.
Neufield memo doesnt state that H1B is invalidated with 485 rejection.

The key is that the applicant met the requirements for H1B extension at the "application time" as well as at the "approval time". And NONE of the requirements about "keeping the H1B status" says about having a pending 485/140/LC.

Lets just say, you applied for H1 got approved, and later your university found that you didnt complete one course, and so took your degree back. This doesnt necessarily invalidate your current H1B status, even though it was approved based on you having your Degree.

Or lets say you applied for visitor visa, came as visitor to USA and in 3 months some things changed and you changed your "intention" and applied for GC. It doesnt necessarily invalidate your "visitor" status in USA, even though you were approved for visitor status based on the condition that do didnt have "immigration intent", at the time of application.

You have to separate the requirements of getting approved vs being in status.



Like I said, it's been discussed a million times before and then some..
I will quote verbatim from Neufield memo from 2005 that says whole reason for person being here after 6 yrs is Pending 485. When 485 is denied they send a letter saying get out in 10 days. Now one can take the risk and try to convince immigration officers that 485 is denied but h1b is valid and all but once again, it's NOT GREY AREA. It's some attornies taking difference interpretation, None of these scenarios have been put to test ..
So there really ISN't any difference coz your risk is same whether you are on EAD or/AND h1..

More importantly, does anyone among has stamina and desire to wait another 10 yrs in line fresh?

[saileshdude]

When your 485 gets denied - you have an option to file for MTR. If the denial is not right, then your MTR should resolve it.

Now, I don't understand how people are getting scared about a denial? It is like, trying to please yourself and convincing yourself, and present urself in the best possible ways to USCIS so that USCIS will think "This guy is really SOMETHING, he understands that once 485 is denied he has no options and wants to play it safe, very good"

Does your denial say "get out of the country" or "if this is a mistake please file MTR"

Mistakes do happen. People have to pursue strongly.

Play it safe - but to what extent? Dive into deep waters, you will figure out a way.

Bottomline - it is choice - if you want to use h1b u can, if u want to use EAD u can.


Yes, Chandu I agree with you completely. There is a extent to something. But if someone has a job offer they like and the company is willing to do the transfer of H1 then it is no harm in going that route.

EAD does open up a lot of options for you. And nowadays especially with economy EAD is much better to get a job quickly.

[morchu]

In fact another reason for keeping H1B is travel.

1. A lot of countries doesn't recognize Adjustee (using AP) as a valid status in USA. Having H1B makes your life easier to get a visitor visa to some countries. This applies to a lot of persons who does a lot of business trips outside of USA.

2. 3 year validity of H1B stamping makes the life easier for the same guys. Business necessities of travel are never predictable, and you dont want to be in a situation waiting for your AP.


So it is a personal choice, and everybody will have their own reason to use H1B or EAD.

Yes, Chandu I agree with you completely. There is a extent to something. But if someone has a job offer they like and the company is willing to do the transfer of H1 then it is no harm in going that route.

EAD does open up a lot of options for you. And nowadays especially with economy EAD is much better to get a job quickly.

[h1techSlave]

Another reason for H1B - getting a loan.

Banks do not recognize "Pending 485" as a valid status. For them H1B is a valid status. The next level of status after H1 is GC. There is no valid status between H1B and GC.

We are currently experiencing it first hand.

In fact another reason for keeping H1B is travel.

1. A lot of countries doesn't recognize Adjustee (using AP) as a valid status in USA. Having H1B makes your life easier to get a visitor visa to some countries. This applies to a lot of persons who does a lot of business trips outside of USA.

2. 3 year validity of H1B stamping makes the life easier for the same guys. Business necessities of travel are never predictable, and you dont want to be in a situation waiting for your AP.


So it is a personal choice, and everybody will have their own reason to use H1B or EAD.

[GCDo]

Thanks a lot for the responses.

I am inclining towards withdrawing the H1 extension petition.
Will it have any affect on my I-485 processing? Thats my only concern.

Company lawyer is advising me to respond to the RFE.
But they have their own reasons and I do not trust them as they will bill my company for the services.

[morchu]

No.
That alone wont cause any issue for your 485.

Thanks a lot for the responses.

I am inclining towards withdrawing the H1 extension petition.
Will it have any affect on my I-485 processing? Thats my only concern.

Company lawyer is advising me to respond to the RFE.
But they have their own reasons and I do not trust them as they will bill my company for the services.

[hopelessGC]

Thanks a lot for the responses.

I am inclining towards withdrawing the H1 extension petition.
Will it have any affect on my I-485 processing? Thats my only concern.

Company lawyer is advising me to respond to the RFE.
But they have their own reasons and I do not trust them as they will bill my company for the services.

Why don't you just reply to the RFE and see how it goes? If it is approved then great otherwise you have your EAD.

Withdrawing H1-B application will not cause any ill-effects on your I-485.

[saileshdude]

Thanks a lot for the responses.

I am inclining towards withdrawing the H1 extension petition.
Will it have any affect on my I-485 processing? Thats my only concern.

Company lawyer is advising me to respond to the RFE.
But they have their own reasons and I do not trust them as they will bill my company for the services.

I would not advise in withdrawing the H1. THis may raise more doubts and they can dig deeper in all the applications including your I-140 , if approved, as well as I-485. Since your RFE seems to be more of company related even if they reject your H1 it will be not your fault in any way. But withdrawing may actually open new can of worms.

But this is just my opinion. I think you should consult another good attorney and act accordingly.

[GCDo]

USCIS has given only two weeks to respond. Over that my company needs 5 days lead time.
Lot of stuff like client letter, purchase orders etc I have to initiate ( Other colleagues of mine who got it did it themselves as well)

I am busy in the project with tight timelines. So If it doesnt have any adverse impact on my I-485 I will withdraw instead of wasting two weeks for nothing.(I have used AP while reentering!)

[rockrocky]

and he said you should not have applied for H1 in the first place. But now that you have initiated that, you should never withdraw. Only situation you can do that is if you are planning to change to H4 from H1. Otherwise, respond to RFE with all documents asked for. They seem to be following up with companies who are not responding for RFE and instead withdrawing altogether. btw, whats your 140 status? I hope it is approved. If not, you are trying to shoot at your own feet by withdrawing. Even otherwise, you not only shooting your feet, but your employer will also be affected and so will other employees in your company.

[GCDo]

and he said you should not have applied for H1 in the first place. But now that you have initiated that, you should never withdraw. Only situation you can do that is if you are planning to change to H4 from H1. Otherwise, respond to RFE with all documents asked for. They seem to be following up with companies who are not responding for RFE and instead withdrawing altogether. btw, whats your 140 status? I hope it is approved. If not, you are trying to shoot at your own feet by withdrawing. Even otherwise, you not only shooting your feet, but your employer will also be affected and so will other employees in your company.

My 140 was approved 3 years back. I am still with the same company. My company has already withdrawn few cases where USCIS has asked for some confidential information. My case they will be willing to provide documents.

[rockrocky]

My 140 was approved 3 years back. I am still with the same company. My company has already withdrawn few cases where USCIS has asked for some confidential information. My case they will be willing to provide documents.

My friend, When you have your 140 approved and EAD in hand then why did you even choose to apply for H1 again? And more over, if the company withdrew other applications cos USCIS is asking some information (Confidential? Nothing is confidential for them. They can retrieve any information they want), aren't you taking a bigger risk on your GC by sticking to that company? Just my thoughts. I am ready to be trashed/bumped by experts on IV.

[GCDo]

My friend, When you have your 140 approved and EAD in hand then why did you even choose to apply for H1 again? And more over, if the company withdrew other applications cos USCIS is asking some information (Confidential? Nothing is confidential for them. They can retrieve any information they want), aren't you taking a bigger risk on your GC by sticking to that company? Just my thoughts. I am ready to be trashed/bumped by experts on IV.

You are right there is no point in applying for H1.
I never wanted to apply but as a part of my company guidelines H1 filing is advised.
Hence immigration cell asked me to file for it. with the flood of RFEs coming I am sure this policy is going to change. But this was the primary reason I applied for H1.

The confidential information in other RFEs were the project cost etc which my company wants to share.

In my case those things are not asked. Now that RFE has come I am going ahead and replying to the RFE. Most of the stuff company has agreed to provide me.
( Purchase orders , service agreement, client letter etc)

[rockrocky]

You are right there is no point in applying for H1.
I never wanted to apply but as a part of my company guidelines H1 filing is advised.
Hence immigration cell asked me to file for it. with the flood of RFEs coming I am sure this policy is going to change. But this was the primary reason I applied for H1.

The confidential information in other RFEs were the project cost etc which my company wants to share.

In my case those things are not asked. Now that RFE has come I am going ahead and replying to the RFE. Most of the stuff company has agreed to provide me.
( Purchase orders , service agreement, client letter etc)

I guess you are lucky. Good luck for your H1 Extension.

[GCDo]

I guess you are lucky. Good luck for your H1 Extension.

Thanks a lot for wishing me luck. I definitely need it.

After staying in US for 10+ years. I have realised that Luck is the only thing which matters as far as GC is concerned.
GC has nothing to do with skills, legal status etc.