Is it true H1 -> EAD -> H1 is Numerical Exempt ?

[bp333]

Folks,

Pretty soon I'll have to relocate to another city (same job). Wondering if I should continue using my H1B (valid till 2010) or should I use AC-21 to relocate ?

My attorney insists that I use AC-21, and she states that if something goes south during my Adjustment of Status I can re-file for my H1 and she did state the refiling H1 will be exempt from Annual Numerical Limits as I have been on Non-Immigrant visa in the past 6 year and haven't stayed outside the country for over an year.

Is this something I can rely on? Also, what happens to pending AOS(485) if I use this option to refile my H1 from EAD status?

FORM I-129
Part C. Numerical Limitation Exemption Information.
"Has the beneficiary of this petition been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than one year after attaining such status?"

[meridiani.planum]

Originally Posted by bp333

Folks,

Pretty soon I'll have to relocate to another city (same job). Wondering if I should continue using my H1B (valid till 2010) or should I use AC-21 to relocate ?

My attorney insists that I use AC-21, and she states that if something goes south during my Adjustment of Status I can re-file for my H1 and she did state the refiling H1 will be exempt from Annual Numerical Limits as I have been on Non-Immigrant visa in the past 6 year and haven't stayed outside the country for over an year.

Is this something I can rely on? Also, what happens to pending AOS(485) if I use this option to refile my H1 from EAD status?

FORM I-129
Part C. Numerical Limitation Exemption Information.
"Has the beneficiary of this petition been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the United States for more than one year after attaining such status?"

you are using AC-21 either way. AC-21 != EAD. When you change jobs using AC-21 you can either use EAD or H1.
In your case your lawyer is right, makes sense to use EAD, and keep the remaining H1 time as 'backup' in case something goes wrong with your AOS.
You will be exempt from the limit, but will get H1 time as continuation from current time. ie. your H1 clock is not resetting back to 6 years, its 'freezing' now, and will continue from that point on. Since you appear to have 2 years left on your H1 6 year limit, if you ever come back to H1 from EAD, you will get an approval for only 2 more years.

Note that while moving to EAD has this advantage of saving time on your H1 and many more advantages, it also has the disadvantages of:
- needing AP to travel and the need to keep EAD and AP renewed every year. If you have a H1 stamp till 2010, your travel needs until then are taken care of.
- if EAD renewal is delayed and your EAD expires you will need to stop working. With H1 you can work as long as an extension is pending.
However in your specific case the H1 remains as a backup in all these cases, so what your attorney is suggesting does seem to be a good idea.

[bp333]

Originally Posted by meridiani.planum

you are using AC-21 either way. AC-21 != EAD. When you change jobs using AC-21 you can either use EAD or H1.
In your case your lawyer is right, makes sense to use EAD, and keep the remaining H1 time as 'backup' in case something goes wrong with your AOS.
You will be exempt from the limit, but will get H1 time as continuation from current time. ie. your H1 clock is not resetting back to 6 years, its 'freezing' now, and will continue from that point on. Since you appear to have 2 years left on your H1 6 year limit, if you ever come back to H1 from EAD, you will get an approval for only 2 more years.

Note that while moving to EAD has this advantage of saving time on your H1 and many more advantages, it also has the disadvantages of:
- needing AP to travel and the need to keep EAD and AP renewed every year. If you have a H1 stamp till 2010, your travel needs until then are taken care of.
- if EAD renewal is delayed and your EAD expires you will need to stop working. With H1 you can work as long as an extension is pending.
However in your specific case the H1 remains as a backup in all these cases, so what your attorney is suggesting does seem to be a good idea.

Planum, Thanks for you response. I am currently on my 7th year extension of my H1, got a 3 Yr ext valid till 2010 as my 140 was approved.
What you said earlier, does it still hold good as I already exceeded my 6yr limit. I think so, but just checking ?

Also, worst case screnario, what would happed if I were to refile my H1 after moving to EAD (assuming somthing goes wrong with pending AOS) does that mean my pending AOS will be cancelled as I moved from Immigrant visa to Non-Immigrant ?

Thanks again.