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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 10-15-2007, 09:48 PM
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Default Various lawyer's opinions on using both H1b and EAD together

hope my discussion with the lawyer helps everybody. If you guys have any further questions I am email my lawyer further.

Cheers

================================================== ========


My letter to lawyer:

Thank you for the reply. That answered many questions. One more question.: I have read on some online forums that the moment I start using EAD my H1b becomes invalid. The website mentioned that the applicant cannot have dual status as H1B or having EAD.

I just wanted to double check that if I use EAD I wouldn't abandon my H1b.

Lawyer's reply:

You can't use both H-1B and EAD for the same employer (you have to work on one or the other), but if you use H-1B for one employer and EAD for another, this is absolutely permissible. Just make sure you use H-1B for the employer that filed your H visa.

Last edited by dollar500; 10-15-2007 at 10:50 PM.
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  #2 (permalink)  
Old 10-15-2007, 10:21 PM
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this is getting as confusing as ever with EAD and H1B..

I have my H1 approved until May-2010(phew..right from May99).If I start using my EAD in 6 months and for any reason there is an issue with the 485 can I fall back onto my H1 and continue to work on H1 provided the H1 is not revoked by the employer..and the same way the dependant fall back on h4 OR get a H1/H4 stamping on passport now itself and enter back into the country with new i94s if anything goofs up with 485..??


I cant trust my lawyer...they say they have 25ys experience etc...

pls share your thoughts...
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  #3 (permalink)  
Old 10-15-2007, 10:28 PM
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Quote:
Originally Posted by file485 View Post
this is getting as confusing as ever with EAD and H1B..

I have my H1 approved until May-2010(phew..right from May99).If I start using my EAD in 6 months and for any reason there is an issue with the 485 can I fall back onto my H1 and continue to work on H1 provided the H1 is not revoked by the employer..and the same way the dependant fall back on h4 OR get a H1/H4 stamping on passport now itself and enter back into the country with new i94s if anything goofs up with 485..??


I cant trust my lawyer...they say they have 25ys experience etc...

pls share your thoughts...
You are probably misunderstaning. My understanding is that you have H1b with employer A, and you want to use EAD with employer A as well. If that is the case then you'll abandon your H1b as soon as you start using EAD

But if you want to do a part time job with employer B, you can continue H1b from employer A and use EAD for employer B. you'll still keep your valid H1b status.

Did I answer your question?
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Old 10-15-2007, 10:32 PM
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I'm confused as heck too regarding this. Some say AP totally canx out H1. My lawyer says EAD doesn't totally canx out h1, while some say that it does.

How about this... if you start using ead, can you go back and file extension of h1b in a few months after using ead? meaning once you get h1b extension, go out the country, reenter with h1b stamp...then back on h1b????


i'm confused cause my 6yr h1b ends in dec. My perm is not 365 days old (filed may 07, approved aug 07) and 140/485/ead/ap applied aug 07. since i don't qualify for h1b extensions till i140 approval (perm not 365 days old), can i theoretically use EAD (if it ever comes) till say May 08 or till my I140 comes through (whichever comes first) and at that time since eligible for h1b extensions, file h1b extension, get papers of approval, go out country, get h1b stamp, reenter, continue on h1b status?????


why cant the govt have clear answers on some of this stuff.
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  #5 (permalink)  
Old 10-15-2007, 10:39 PM
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Default If this is correct

Gurus,
Is this the case. if so that would be great where in one can be on H1 and as well use the EAD. I am not sure having seen this earlier.
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  #6 (permalink)  
Old 10-15-2007, 10:42 PM
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Although my lawyer swears that the information provided is correct. Is there a way we can talk to USCIS and confirm this?
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  #7 (permalink)  
Old 10-15-2007, 11:02 PM
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Quote:
Originally Posted by dollar500 View Post
hope my discussion with the lawyer helps everybody. If you guys have any further questions I am email my lawyer further.

Cheers

================================================== ========


My letter to lawyer:

Thank you for the reply. That answered many questions. One more question.: I have read on some online forums that the moment I start using EAD my H1b becomes invalid. The website mentioned that the applicant cannot have dual status as H1B or having EAD.

I just wanted to double check that if I use EAD I wouldn't abandon my H1b.

Lawyer's reply:

You can't use both H-1B and EAD for the same employer (you have to work on one or the other), but if you use H-1B for one employer and EAD for another, this is absolutely permissible. Just make sure you use H-1B for the employer that filed your H visa.
Read this:

"Does using EAD void my H1B?
Yes. Using EAD for employment will terminate your existing H-1B status. It doesn't matter whether you used the EAD to work for the same employer, another employer, yourself or only part-time.

Simply having an EAD, but never using it, does not affect your H1 status.

If you have already used an EAD for work, you may be able to stop and resume your H1B status, thanks to the doctrine of dual intent. However, the law is not very clear and USCIS has not released specific regulations to address some of the issues. Consult a knowledgeable attorney if you plan to use EAD to start a side business or take a part-time job."

Source: http://immigrationroad.com/green-card/ead-ap.php
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  #8 (permalink)  
Old 10-15-2007, 11:23 PM
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Quote:
Originally Posted by raysaikat View Post
Read this:

"Does using EAD void my H1B?
Yes. Using EAD for employment will terminate your existing H-1B status. It doesn't matter whether you used the EAD to work for the same employer, another employer, yourself or only part-time.

Simply having an EAD, but never using it, does not affect your H1 status.

If you have already used an EAD for work, you may be able to stop and resume your H1B status, thanks to the doctrine of dual intent. However, the law is not very clear and USCIS has not released specific regulations to address some of the issues. Consult a knowledgeable attorney if you plan to use EAD to start a side business or take a part-time job."

Source: http://immigrationroad.com/green-card/ead-ap.php
Thanks for the link. I have just sent an email to the lawyer quoting this website. hopefully will get reply by tomorrow. Will keep it updated
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  #9 (permalink)  
Old 10-16-2007, 12:02 AM
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Quote:
Originally Posted by dollar500 View Post
Thanks for the link. I have just sent an email to the lawyer quoting this website. hopefully will get reply by tomorrow. Will keep it updated
Please ask your lawyer to give you a reference to the text of the law. Everywhere I have been told that using EAD, even for a second job, invalidates the current H1B.
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  #10 (permalink)  
Old 10-16-2007, 01:24 AM
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Use of EAD will invalidate your H1-B. As for going out of the country and returning with a H1B stamp is concerned,

Case 1: you probably will lose the H1B and will have to come under the cap again if you have already exceeded 6 years on H1B.

Case 2: less than 6 years on H1B. I don't know if AC21(reclaiming your old H1B) can take precedence over the change of status towards an adjustee.
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  #11 (permalink)  
Old 10-16-2007, 01:33 AM
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Quote:
Originally Posted by werc View Post
Use of EAD will invalidate your H1-B. As for going out of the country and returning with a H1B stamp is concerned,

Case 1: you probably will lose the H1B and will have to come under the cap again if you have already exceeded 6 years on H1B.
huh. Why will you come under the cap? this H1 is still an H1 'extension' of your original H1 based on your approved I-140 (or LC being >365 days old)

Quote:
Case 2: less than 6 years on H1B. I don't know if AC21(reclaiming your old H1B) can take precedence over the change of status towards an adjustee.
its always the 'last-action-rule'. So if you come back in H1, hten thats your status and since H1 is dual intent, your AOS continues as-is. If you come back in a non-immigrant status (F1/B1) then that takes precedence and since its not dual intent, it ends your AOS.
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  #12 (permalink)  
Old 10-16-2007, 06:56 AM
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Quote:
Originally Posted by gc_chahiye View Post
huh. Why will you come under the cap? this H1 is still an H1 'extension' of your original H1 based on your approved I-140 (or LC being >365 days old)



its always the 'last-action-rule'. So if you come back in H1, hten thats your status and since H1 is dual intent, your AOS continues as-is. If you come back in a non-immigrant status (F1/B1) then that takes precedence and since its not dual intent, it ends your AOS.
Thanks..this makes more sense to me...more optimistic too. (BTW i'm already h1b cap exempt as I work for nonprofit) I think this is what my lawyer has been trying to explain to me. He's a busy man so not good with having time to explain things. He has not messed up things for me even once, so I trust him.

I guess only concern for me then would be the time from dec 07 to may 08 when using EAD..it's a risky time since I'm not really on h1b during that period and don't have that safety net in case of 140 denial and subsequent AOS denial.

***sigh*** confusions and the draining immigration system
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  #13 (permalink)  
Old 10-16-2007, 07:06 AM
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it is always confusing between EAD and H1.
Can IV get clarification from USCIS?
Attorneys always express different interpretations.
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  #14 (permalink)  
Old 10-16-2007, 08:55 AM
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I meant that if you exceeded 6 yrs on your H1B , and you change to an EAD , your H1B status lapses. Now to get an H1B stamp you need to have a new H1B petition. The new H1B petition would then be subjected to the cap.


Quote:
Originally Posted by gc_chahiye View Post
huh. Why will you come under the cap? this H1 is still an H1 'extension' of your original H1 based on your approved I-140 (or LC being >365 days old)
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Old 10-16-2007, 12:09 PM
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Default Update From Lawyer

Encouraging reply:

"I believe the website is wrong - actually, see their disclaimer saying that "None of the information provided on immigrationroad.com is to be construed as legal advice. Despite our best efforts, we are not responsible for errors or outdated materials. " So, just be careful with these websites"
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