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Work/Travel options after 485 : H1 Versus EAD/AP Work/Travel options after 485 : H1 Versus EAD/AP. Comparison between keeping H1 versus forfeiting H1 and using EAD/AP after 485 filing.

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  #1 (permalink)  
Old 08-07-2007, 04:13 PM
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Default What can and can't be done with EAD?

I understand that one can change jobs if I-485 is pending for more than 180 days. Assuming that I use my EAD after 180 days, here are a few questions

1) Can I work with any employer (like STARBUCKS, Walmart) or should the new job/salary/duties be same as the one mentioned in labor petition?

2) Should I be employed and paid at all times till I-485 is approved?

3) Can I work as an independent contractor? If so, whether the job/salary/duties be same as the one mentioned in labor petition?

4) Can I be self employed? If so, whether the job/salary/duties be same as the one mentioned in labor petition?

5) Can I work for multiple employers? If so, whether the job/salary/duties be same as the one mentioned in labor petition with all my employers?

6) Assuming that I had already spent my 3 years on H1 and the 4th year on EAD, after which my I-485 is denied, Will I be able to apply for H1 again, if so, will I get back 6 years of H1 time?

Last edited by americandesi; 08-07-2007 at 04:20 PM.
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  #2 (permalink)  
Old 08-07-2007, 04:20 PM
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I understand that one can change jobs if I-485 is pending for more than 180 days. Assuming that I use my EAD after 180 days, here are a few questions

1) Can I work with any employer (like STARBUCKS, Walmart) or should the new job/salary/duties be same as the one mentioned in labor petition?

No, the job should be "similar" to that of Labor description

2) Should I be employed and paid at all times till I-485 is approved?

Upto 180 days "out-of-status" allowed

3) Can I work as an independent contractor?

As long as job is similar "similar" to that of Labor description

4) Can I be self employed?



5) Can I work for multiple employers?

Sure, as long as aleast one of the employment is similar to job in Labor.

6) Assuming that I had already spent my 3 years on H1 and the 4th year on EAD, after which my I-485 is denied, Will I be able to apply for H1 again, if so, will I get back 6 years of H1 time?
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  #3 (permalink)  
Old 08-07-2007, 05:19 PM
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Quote:
Originally Posted by immi_enthu View Post
I understand that one can change jobs if I-485 is pending for more than 180 days. Assuming that I use my EAD after 180 days, here are a few questions

1) Can I work with any employer (like STARBUCKS, Walmart) or should the new job/salary/duties be same as the one mentioned in labor petition?

No, the job should be "similar" to that of Labor description

2) Should I be employed and paid at all times till I-485 is approved?

Upto 180 days "out-of-status" allowed

3) Can I work as an independent contractor?

As long as job is similar "similar" to that of Labor description

4) Can I be self employed?



5) Can I work for multiple employers?

Sure, as long as aleast one of the employment is similar to job in Labor.

6) Assuming that I had already spent my 3 years on H1 and the 4th year on EAD, after which my I-485 is denied, Will I be able to apply for H1 again, if so, will I get back 6 years of H1 time?

Thanks. Let me know if I need to be paid the the same salary as mentioned in my labor cartification for your answers to 1,2,3,4,5.

Last edited by americandesi; 08-07-2007 at 05:22 PM.
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  #4 (permalink)  
Old 08-07-2007, 05:27 PM
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For new bees..

1.The pending 485 is a valid legal status.
2.One need not necessarily to work till getting the GC in hand, even if you have EAD or H1B, as GC is for future job.
3.With EAD you can do any job, not necessarly GC sponsering job.
4. One must take the GC job (or similar) job upon approval of 485.
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  #5 (permalink)  
Old 08-07-2007, 05:29 PM
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Im not a lawyer ...
This is tricky ... my thoughts on this ....

You can work with any employer..... provided one of the jobs is similar to the one in the labor cert and meets "Ability to pay" especially if you plan on using AC21.
If your spouse is a derivative of your AOS application, he/she can work for any employer too and would not have any restriction on type of job (the primary applicant has restrictions mentioned above)

Regarding -- Self Employment -- that cannot be the primary means ... you have to have atleast one other job which will have the job description similar to what you have in the labor certification, that employer should be able to furnish/satisfy letter of employment, ability to pay, pay stubs etc type issues if requested by USCIS in future during final adjudication of your AOS application.




Quote:
Originally Posted by immi_enthu View Post
I understand that one can change jobs if I-485 is pending for more than 180 days. Assuming that I use my EAD after 180 days, here are a few questions

1) Can I work with any employer (like STARBUCKS, Walmart) or should the new job/salary/duties be same as the one mentioned in labor petition?

No, the job should be "similar" to that of Labor description

2) Should I be employed and paid at all times till I-485 is approved?

Upto 180 days "out-of-status" allowed

3) Can I work as an independent contractor?

As long as job is similar "similar" to that of Labor description

4) Can I be self employed?



5) Can I work for multiple employers?

Sure, as long as aleast one of the employment is similar to job in Labor.

6) Assuming that I had already spent my 3 years on H1 and the 4th year on EAD, after which my I-485 is denied, Will I be able to apply for H1 again, if so, will I get back 6 years of H1 time?
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  #6 (permalink)  
Old 08-07-2007, 05:42 PM
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Default Self-Employment and AC21

With regards to self-employment, I found the following from a Murthy Question and Answer (http://www.murthy.com/Chatdb.asp?Sea...e=All&page=108):

Question: Is self employment portability safe under the AC21 180-day portability by the Yates Memo?

Answer: The Yates Memo seems to imply that working for a company set up by a person who is being employed by that company is possible, though one could argue that it is not that clear. Self employment by itself with no corporate shell is more of a problem since same or similar "employment" is required under AC21 law, implying that "employment" of some sort is required. It may be safer to be employed by a company owned by the person, though this issue has not been legally tested to date, to my knowledge, in any published opinion. Nov-28-2005.

Last edited by deleteuser; 08-07-2007 at 05:46 PM.
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  #7 (permalink)  
Old 08-08-2007, 01:50 PM
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Default

Quote:
Originally Posted by Ramba View Post
For new bees..

1.The pending 485 is a valid legal status.
2.One need not necessarily to work till getting the GC in hand, even if you have EAD or H1B, as GC is for future job.
3.With EAD you can do any job, not necessarly GC sponsering job.
4. One must take the GC job (or similar) job upon approval of 485.

Can you please provide the source for the above mentioned points? I am receiving conflicting answers on maintaining status while I-485 is pending.
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  #8 (permalink)  
Old 08-08-2007, 02:18 PM
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Default EAD question...

Hi,

I have a qn regarding the EAD. If my I-140 and I-485 are still pending and we get EAD for me and my wife (who is on H4), can my wife start working using that EAD while my I-140 (and I-485) is still pending ?

Thanks,
kamdard.
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  #9 (permalink)  
Old 08-08-2007, 02:20 PM
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Default

That is what the EAD is for! Yes is the answer
Quote:
Originally Posted by kamdard View Post
Hi,

I have a qn regarding the EAD. If my I-140 and I-485 are still pending and we get EAD for me and my wife (who is on H4), can my wife start working using that EAD while my I-140 (and I-485) is still pending ?

Thanks,
kamdard.
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Old 08-08-2007, 02:33 PM
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After reading quite a bit of material on this subject , here are my conclusions

1. You need to use EAD to accept any other part-time job.
2. If you do so, it invalidates your h1 nd you need to use EAD for your primary job as well
3. This means you will need AP to travel outside
4. You need to have a valid job offer all the time during your 485 that would offer sufficient salary so that you are not at risk of being public discharge
5. Self employment is ok, but it still has to fall with in parameters of being in similar job responsibilities. With self employment, besides doing work at client location, you will be "managing" your company as well. So this added job functions can invalidate the " similar job" requirement. So unless your LC is for CEO or VP type of managment positions, this might be risky.
6. A less riskier alternative to self employment can be a full time employment on spouse's company. Here the company should be able to prove that it can afford you. But still plenty grey area. Not recommended unless you have absolutely no other choice

7. If 485 is denied, you will have to get H1, but it will fall under new H1 ( not transfer) and hence subject to quota. Looking at H1 scramble these days, that will mean being out of status instantly.
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  #11 (permalink)  
Old 08-08-2007, 02:46 PM
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Default If dependent (spouse) works on EAD or travels on AP, does it in-validate Primary's H1

If dependent (spouse) works on EAD or travels on AP, does it in-validate Primary's H1. Assume that Primary is not using EAD or AP.
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  #12 (permalink)  
Old 08-08-2007, 02:50 PM
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Default

Quote:
Originally Posted by americandesi View Post
Can you please provide the source for the above mentioned points? I am receiving conflicting answers on maintaining status while I-485 is pending.
USCIS interoffice memo (December 2005 - I don't have reference) clarifies several issues for Adjudicators. Yes, technically I-140, I-485 are all for future job. Current job can be anything or nothing, as long as your sponsor maintains the stand, "yes, I will hire this guy on permanent basis on getting GC". Currently you are a guest-worker on a non-permanent job. After 180 days of I-485 pending, however, your sponsor need not even confirm that. You however have to prove (if RFE'd) at the time of getting GC that you have a job offer (or a job) which is same/similar to what is in LC. In the meantime your spouse can use EAD for any job.
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  #13 (permalink)  
Old 08-08-2007, 02:57 PM
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Spouse using EAD / AP has no bearing on primary's H1. So primary can use H1 for work / travel while spouse can use EAD / AP.
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  #14 (permalink)  
Old 08-08-2007, 03:03 PM
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Quote:
Originally Posted by jsb View Post
USCIS interoffice memo (December 2005 - I don't have reference) clarifies several issues for Adjudicators. Yes, technically I-140, I-485 are all for future job. Current job can be anything or nothing, as long as your sponsor maintains the stand, "yes, I will hire this guy on permanent basis on getting GC". Currently you are a guest-worker on a non-permanent job. After 180 days of I-485 pending, however, your sponsor need not even confirm that. You however have to prove (if RFE'd) at the time of getting GC that you have a job offer (or a job) which is same/similar to what is in LC. In the meantime your spouse can use EAD for any job.
Let's consider the following scenerio

1. An employee is already in the payroll of an employer.

2. Employer files for labor petition.

3. Employer promotes the employee to the proposed GC position and pays the proferred wage from the time the labor petition is submitted (so as to prove the ability to pay during I-140 processing).

4. Labor gets approved and Employer concurrently files for I-140 and I-485 (Along with employment letters).

5. I-140 gets approved and meanwhile 180 days pass by

6. Employee plans to use AC21 to changes jobs

Based on the above scenerio

a) Does the employee still need to take up a job "similar" to that of Labor description with AC21?


b) Does the employee still need to take up a job "similar" to that of Labor description after his GC approval?

Technically speaking, the employee had already worked for the proposed GC position for 6 months and hence there is not need to prove his intent to work for the proposed position. Seniors please clarify.

Last edited by americandesi; 08-08-2007 at 03:08 PM.
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  #15 (permalink)  
Old 08-08-2007, 03:11 PM
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a) Yes. Until the 485 is approved, it has to be a "similar" job. The rationale for this can probably traced back to the premise of GC. That it based on a specific job description. So until you get you GC, it has to be that way.
b) Not required.
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