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Retrogression, priority dates and Visa bulletins Issues surrounding the retrogression of the priority dates for the various employment based categories

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  #1 (permalink)  
Old 10-17-2007, 04:22 PM
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I140 Mailed Date
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Default EAD and Impact on H-1B Status for EB-485 Applicants

10/17/2007: EAD and Impact on H-1B Status for EB-485 Applicants in H-1B Nonimmigrant Status

The issue of impact of the EAD and Advance Parole on the nonimmigrant status of I-485 applicants is governed by the old INS memorandum of Michael Cronin, Associate Commissioner, in May 25, 2000. This memorandum clarified two points on the impact of EAD and AP on the 485 applicant's H-1B nonimmigrant status as follows:
Application vs. Use of EAD or Advance Parole: Applying for and obtaining approval of EAD or Advance Parole does not affect the 485 applicant's "nonimmigrant status" including H and L. However, once the alien starts work using an EAD or travels on Advance Parole, the alien is considered no longer in a nonimmigrant status including H and L.
Impact of Using EAD for Another Employer Using EAD: The memorandum states: Question: If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status? Answer: Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 petition and engage in employment for a separate employer.
Unmarried H-1B professionals in I-485 proceeding should seek legal counsel before they attempt to go into an open market seeking employment using EAD.


Source:
www.immigration-law.com

Last edited by smartboy75; 10-17-2007 at 04:24 PM.
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  #2 (permalink)  
Old 10-17-2007, 04:32 PM
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Default

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Originally Posted by smartboy75 View Post
10/17/2007: EAD and Impact on H-1B Status for EB-485 Applicants in H-1B Nonimmigrant Status

The issue of impact of the EAD and Advance Parole on the nonimmigrant status of I-485 applicants is governed by the old INS memorandum of Michael Cronin, Associate Commissioner, in May 25, 2000. This memorandum clarified two points on the impact of EAD and AP on the 485 applicant's H-1B nonimmigrant status as follows:
Application vs. Use of EAD or Advance Parole: Applying for and obtaining approval of EAD or Advance Parole does not affect the 485 applicant's "nonimmigrant status" including H and L. However, once the alien starts work using an EAD or travels on Advance Parole, the alien is considered no longer in a nonimmigrant status including H and L.
Impact of Using EAD for Another Employer Using EAD: The memorandum states: Question: If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status? Answer: Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 petition and engage in employment for a separate employer.
Unmarried H-1B professionals in I-485 proceeding should seek legal counsel before they attempt to go into an open market seeking employment using EAD.


Source:
www.immigration-law.com
interesting. but it still does not answer one question: What happens if you continue working on H1B for primary employer per guidelines of I-129 petition (ie. 40 hours a week) and then use EAD to work part-time for someone else.
Does that 'kill' the H1 petition? MOst lawyers say it does, a couple of them say it does not, since you are fullfilling all your I-129 requirements with your primary employer
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  #3 (permalink)  
Old 10-17-2007, 04:47 PM
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I140 Mailed Date
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Originally Posted by gc_chahiye View Post
interesting. but it still does not answer one question: What happens if you continue working on H1B for primary employer per guidelines of I-129 petition (ie. 40 hours a week) and then use EAD to work part-time for someone else.
Does that 'kill' the H1 petition? MOst lawyers say it does, a couple of them say it does not, since you are fullfilling all your I-129 requirements with your primary employer
This is a gray area, but, my take is, it will void your H1B. See, the logic is this.... EAD is not a status. It's just an employment authorization, just like AP is a travel parole document. You have option of two status:
1. Non-immigrant status (H1B/H4 etc).
2. Pending AOS status.

You can't be in US on both the statuses. So, without being in status 2, you can't invoke EAD, but when you invoke EAD, you are in status 2, so, lose your H1B.

I might be wrong though.
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  #4 (permalink)  
Old 10-17-2007, 04:51 PM
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Priority Date
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08/08/2007
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Quote:
Originally Posted by gc_chahiye View Post
interesting. but it still does not answer one question: What happens if you continue working on H1B for primary employer per guidelines of I-129 petition (ie. 40 hours a week) and then use EAD to work part-time for someone else.
Does that 'kill' the H1 petition? MOst lawyers say it does, a couple of them say it does not, since you are fullfilling all your I-129 requirements with your primary employer
My personal opinion is as below

Why risk GC by working on EAD part-time ?? Since there is no consensus among lawyers themselves and assuming this is a gray area with USCIS, I would suggest lets not risk ...better late than sorry ...

My 2 cents..
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  #5 (permalink)  
Old 10-17-2007, 04:53 PM
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Let me add one more wrinkle:

Do you guys think I would lose my right to use EAD if I move to another employer by transferring my H1B? (I still have 2 years on it).
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  #6 (permalink)  
Old 10-17-2007, 05:06 PM
Senior Member
Priority Date
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May-04
Category
:
EB2
I140 Mailed Date
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02/12/2007
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India
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I-485
I485 Mailed Date
:
08/08/2007
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Join Date: Jun 2007
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Originally Posted by just_waiting View Post
Let me add one more wrinkle:

Do you guys think I would lose my right to use EAD if I move to another employer by transferring my H1B? (I still have 2 years on it).
Please research the forumn for answer to your question...has been discussed a lot of times before...

To answer in short...You will loose your right to use EAD if your I40 is still pending and your employer decides to revoke it...
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  #7 (permalink)  
Old 10-17-2007, 05:08 PM
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Thanks SmartBoy. I agree, I should have looked around. My I-140 is approved so I assume I shouldn't have any problem. Thanks again.
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