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rxsimha
03-17-2009, 05:09 PM
In continuation to the below thread, I was asked to start a new thread

http://immigrationvoice.org/forum/showthread.php?t=24403

Below is my question, please find some time to respond

I currently working on H1 for the last 5 years.
I am a July 2007 I-485 filer and have my I-140 approved.

From what I read from the above thread -

1. Does it make sense to fill an I-9 form with the same employer and start working on EAD, instead of burning my remaining period in H1?

2. That way even if for some reason my I-485 gets rejected, I can continue working by switching to H1?

Thoughts....

gc_kaavaali
03-17-2009, 05:14 PM
That is good idea to keep H1B status as much as possible. Use EAD when u have to use it.

Thanks

In continuation to the below thread, I was asked to start a new thread

http://immigrationvoice.org/forum/showthread.php?t=24403

Below is my question, please find some time to respond

I currently working on H1 for the last 5 years.
I am a July 2007 I-485 filer and have my I-140 approved.

From what I read from the above thread -

1. Does it make sense to fill an I-9 form with the same employer and start working on EAD, instead of burning my remaining period in H1?

2. That way even if for some reason my I-485 gets rejected, I can continue working by switching to H1?

Thoughts....

rxsimha
03-17-2009, 06:03 PM
That is good idea to keep H1B status as much as possible. Use EAD when u have to use it.

Thanks

Thanks for the reply.
But consider the below scenarios.
- A person is on his 5th Year of H1 and his I-485 gets rejected - he can go back to H1 (Since he has 1 year left).

- A person has exhausted his 6 years (May be in his 7th year). Now his I-485 gets rejected - he cannot go back to H1 (Since he has exhausted his 6 years on H1).

Not sure if my understanding is right here

axp817
03-17-2009, 06:44 PM
Thanks for the reply.
- A person is on his 5th Year of H1 and his I-485 gets rejected - he can go back to H1 (Since he has 1 year left).

- A person has exhausted his 6 years (May be in his 7th year). Now his I-485 gets rejected - he cannot go back to H1 (Since he has exhausted his 6 years on H1).

Not sure if my understanding is right here

That is correct, scenario 1, atleast to me, seems like a smarter choice, and that is what I have chosen to do.

You can go back on the H-1B if your 485 were to get denied and your appeals (assuming you made any) were to fail, although I am not sure if you need to leave the country and re-enter or if you can adjust status to H-1B without leaving the country.

Green.Tech
03-17-2009, 07:59 PM
Say a person has finished his 6 years and got a 3-year extension based on an approved I140. Now, he is working in his 7th year and his 485 gets rejected. Would that mean he still has 2 more years of H-1B or does that mean he loses the remaining 2 years of H-1B time immediately since 485 got rejected?

validIV
03-17-2009, 09:43 PM
Say a person has finished his 6 years and got a 3-year extension based on an approved I140. Now, he is working in his 7th year and his 485 gets rejected. Would that mean he still has 2 more years of H-1B or does that mean he loses the remaining 2 years of H-1B time immediately since 485 got rejected?

He will be out of status. Your 3 year extension beyond the allowed 6 years is based on that LC/I-140 from which your I-485 was filed. If the I-485 is rejected you have no right to stay beyond 6 years.

It is best to not use more than 3 years of H-1 if you have a pending I-485. That way you have 3 more years of H-1 in case you get rejected. The pending I-485 gives you unlimited time in the form of EAD/AP. Dont waste your H-1 time.

It only makes sense to keep H-1 while you have AOS if your country of chargeability is ROW, which is usually current. If your country is backlogged, it will most likely extend your H-1 over six years. Please consult a proper immigration attorney before you do anything.

kittu1991
03-17-2009, 09:50 PM
He will be out of status. Your 3 year extension beyond the allowed 6 years is based on that LC/I-140 from which your I-485 was filed. If the I-485 is rejected you have no right to stay beyond 6 years.

It is best to not use more than 3 years of H-1 if you have a pending I-485. That way you have 3 more years of H-1 in case you get rejected. The pending I-485 gives you unlimited time in the form of EAD/AP. Dont waste your H-1 time.

It only makes sense to keep H-1 while you have AOS if your country of chargeability is ROW, which is usually current. If your country is backlogged, it will most likely extend your H-1 over six years. Please consult a proper immigration attorney before you do anything.

That's not true, as per my attorney. When you are on the 7th yr of your H1 the only reason for the you get the 3 year extention on the H1 based on your approved I140 after filing your 485, is so that you won't be out of status even if your 485 gets rejected. You can still stay is status in US and appeal your 485.
:rolleyes:

validIV
03-17-2009, 09:53 PM
That's not true, as per my attorney. When you are on the 7th yr of your H1 the only reason for the you get the 3 year extention on the H1 based on your approved I140 after filing your 485, is so that you won't be out of status even if your 485 gets rejected. You can still stay is status in US and appeal your 485.

Sorry, forgot to mention the MTR. If your I-485 AND MTR is rejected, my point still stands.

Before you decide to waste your H-1 time please read: http://imminfo.com/Newsletter/2009-3/EAD_vs_H1B.html

Always consult a proper immigration attorney

kittu1991
03-17-2009, 10:00 PM
Sorry, forgot to mention the MTR. If your I-485 AND MTR is rejected, my point still stands.


By MTR did you mean appeal. Still you are wrong.:D

validIV
03-17-2009, 10:07 PM
MTR = Motion to reopen = appeal :)

casinoroyale
03-18-2009, 10:40 AM
I also don't think this is true. After you get your 3-year H1B extension beyound the 6-year limit and say your 485 gets denied while you are in 7th year, you can still stay and work for the rest of the 2 years on your H1B and use those 2 years to file for new LC etc.

Gurus, please advise, with the slew of mistaken 485 denials this is an important point to clarify.


He will be out of status. Your 3 year extension beyond the allowed 6 years is based on that LC/I-140 from which your I-485 was filed. If the I-485 is rejected you have no right to stay beyond 6 years.

It is best to not use more than 3 years of H-1 if you have a pending I-485. That way you have 3 more years of H-1 in case you get rejected. The pending I-485 gives you unlimited time in the form of EAD/AP. Dont waste your H-1 time.

It only makes sense to keep H-1 while you have AOS if your country of chargeability is ROW, which is usually current. If your country is backlogged, it will most likely extend your H-1 over six years. Please consult a proper immigration attorney before you do anything.

number30
03-18-2009, 11:12 AM
I also don't think this is true. After you get your 3-year H1B extension beyound the 6-year limit and say your 485 gets denied while you are in 7th year, you can still stay and work for the rest of the 2 years on your H1B and use those 2 years to file for new LC etc.

Gurus, please advise, with the slew of mistaken 485 denials this is an important point to clarify.

He will have the H1 status until the expiry date. But only thing he may not be able to transfer H1 if there is no other case is pending.

validIV
03-18-2009, 11:25 AM
He will have the H1 status until the expiry date. But only thing he may not be able to transfer H1 if there is no other case is pending.

Youre allowed to stay in H1 status for 6 years. If you want to extend it over 6 years, that extension will be based on the EB petition (you need an LC and approved I-140). If that EB petition is denied and denied again thru appeals (MTRs), you are out of status.

Please read: http://www.immigration-information.com/forums/showthread.php?t=5293

Please consult your immigration attorney and do not rely on information posted here, that is your best chance at being assured.

desi3933
03-18-2009, 11:36 AM
He will be out of status. Your 3 year extension beyond the allowed 6 years is based on that LC/I-140 from which your I-485 was filed. If the I-485 is rejected you have no right to stay beyond 6 years....

Total BS and Incorrect.

One can work on current H-1B (irrespective on basis it was approved), until the H-1B petition is revoked or canceled or expired. However, beneficiary is not eligible for new/extension of H-1B after I-485 denial.


__________________
Not a legal advice.

validIV
03-18-2009, 11:48 AM
One can work on current H-1B (irrespective on basis it was approved), until the H-1B petition is revoked or canceled or expired. However, beneficiary is not eligible for new/extension of H-1B after I-485 denial.

We can quote memos and statutes all day and it would go nowhere. This is simply a matter of interpretation by USCIS and how it applies to the situtation.

Best advice? Talk to more than 1 immigration lawyer.

desi3933
03-18-2009, 11:56 AM
Best advice? Talk to more than 1 immigration lawyer.

I don't need to talk to Immigration Attorney.

Have a good day!

validIV
03-18-2009, 11:59 AM
I don't need to talk to Immigration Attorney.

That last line wasn't for you. It was for the OP.

Green.Tech
03-18-2009, 01:05 PM
...and the confusion regarding this rule continues :)

casinoroyale
03-18-2009, 01:15 PM
You should read that RonGothers thread - he is strongly of the opinion that maintaining H1B status while AOS is pending is useless. Moreover, it seems like USCIS can revoke your remaining H1B when they deny AOS application basically kicking you out of the country immediately. Now as a practical matter, I don't think they are doing that anyway. So guys, once you burn up your 6 year H1B, there is no real strong cushion if 485 gets denied. To heck with these laws. Stupid and irritating.






...and the confusion regarding this rule continues :)

validIV
03-18-2009, 01:20 PM
You should read that RonGothers thread - he is strongly of the opinion that maintaining H1B status while AOS is pending is useless

Its not useless if you are in a ROW country/category that is always/usually current since your I-485 can be approved in a short period of time, without having to extend H-1. So you can save yourself the hassle of switching back and forth between H-1 and EAD.

It only becomes pointless when you are in a backlogged country like most of us are. By the time a decision is made on the I-485 you wouldve already extended your H-1 beyond 6 years, thus making it dependant on that EB petition.

Green.Tech
03-18-2009, 01:57 PM
You should read that RonGothers thread - he is strongly of the opinion that maintaining H1B status while AOS is pending is useless. Moreover, it seems like USCIS can revoke your remaining H1B when they deny AOS application basically kicking you out of the country immediately. Now as a practical matter, I don't think they are doing that anyway. So guys, once you burn up your 6 year H1B, there is no real strong cushion if 485 gets denied. To heck with these laws. Stupid and irritating.

I agree, casinoroyale. Confusing, they are! I have actually read Ron Gotcher's column but then this thread came along :)

s416504
03-18-2009, 02:53 PM
You are correct but I think I am not sure if one can change employer (H1B Transfer) during that 3 Year extended H1B period after 485 denial.

Total BS and Incorrect.

One can work on current H-1B (irrespective on basis it was approved), until the H-1B petition is revoked or canceled or expired. However, beneficiary is not eligible for new/extension of H-1B after I-485 denial.


__________________
Not a legal advice.

desi3933
03-18-2009, 03:23 PM
You are correct but I think I am not sure if one can change employer (H1B Transfer) during that 3 Year extended H1B period after 485 denial.

You are right. Thanks for pointing it out.

I missed change when I mentioned new/extension of H-1B. The statement should have been

One can work on current H-1B (irrespective on basis it was approved), until the H-1B petition is revoked or canceled or expired. However, beneficiary is not eligible for new/change/extension of H-1B status after I-485 denial


.

casinoroyale
03-18-2009, 03:26 PM
You are correct but I think I am not sure if one can change employer (H1B Transfer) during that 3 Year extended H1B period after 485 denial.

That seems to make sense, because there is no such a thing like a H1-B transfer as every application is a new one, so you can't really file a new H1-B with no grounds when 485 is denied and you have already used up 6 years. But my friends, but but but, you can always file a Labor with employer B and when its pending more than 1 year, apply for H-1B extension/transfer. Woo hoo...

rxsimha
03-18-2009, 04:13 PM
So does that mean that if one's I-485 is rejected (Has no luck with MTR either) -
Then he cannot continue after his current H1-B expires (After 0 to 3 years)?
Going back to his home country is the only option?

validIV
03-18-2009, 05:18 PM
So does that mean that if one's I-485 is rejected (Has no luck with MTR either) - Then he cannot continue after his current H1-B expires (After 0 to 3 years)?
Going back to his home country is the only option?

RXSimha, the best advice you can take is to talk to an immigration lawyer. Nobody that has posted here has stated any facts, only interpretations. If you wish to learn more follow this thread:

http://www.immigration-information.com/forums/showthread.php?t=5293&page=3

Make an account and ask your question to Ron, which has already been answered multiple times. He is an immigration attorney. But do not stop there. Confirm all information with multiple immigration attorneys of your preference at your discretion.

Good luck.

add78
03-18-2009, 05:54 PM
So does that mean that if one's I-485 is rejected (Has no luck with MTR either) -
Then he cannot continue after his current H1-B expires (After 0 to 3 years)?
Going back to his home country is the only option?

That is correct unless you have other grounds for new H1b petition (highly unlikely at this point in one's stage) - Per Yates as well as Neufeld memo,

If at any time before or after the filing of the single (combined) extension request a final decision is made on the above-stated grounds, the beneficiary of the extension request will not be entitled to an extension beyond the time remaining on his or her 6-year maximum stay unless another basis for exceeding the maximum applies.

add78
03-18-2009, 05:58 PM
RXSimha, the best advice you can take is to talk to an immigration lawyer. Nobody that has posted here has stated any facts, only interpretations. If you wish to learn more follow this thread:

http://www.immigration-information.com/forums/showthread.php?t=5293&page=3

Make an account and ask your question to Ron, which has already been answered multiple times. He is an immigration attorney. But do not stop there. Confirm all information with multiple immigration attorneys of your preference at your discretion.

Good luck.

That is NOT true. desi3933 and I quote directly from the INA or AC-21 or UCSIC Field Memos. Please read the Yates or Neufeld memo and you will get all the answers. Many lawyers themselves do not have all the info at their fingertips and will ultimately refer to the law. By definition, a law is created to not leave "anything" to interpretation, thus the cumbersome "lawyerspeak" in which it is written. In rarest of cases where there "might" be ambiguity, it is usually clarified by Memo releases or Judicial precedences.

number30
03-18-2009, 07:28 PM
Youre allowed to stay in H1 status for 6 years. If you want to extend it over 6 years, that extension will be based on the EB petition (you need an LC and approved I-140). If that EB petition is denied and denied again thru appeals (MTRs), you are out of status.

Please read: http://www.immigration-information.com/forums/showthread.php?t=5293

Please consult your immigration attorney and do not rely on information posted here, that is your best chance at being assured.

Did you really read it properly? That talks about you cannot revert back H1 once you have completed six year term with no other eligible pending applications. If someone is seventh year H1 and denied after the seventh year started then he can complete the seventh year. But he will get year number eight. Approved H1 will not become invalid at this stage.