H-1B vs EAD

Question: I have filed my I-485 petition and have my work and travel permit.  Do I still need to continue my H-1B?

 

I get asked the above question a lot.  And the answer like most things is, “it depends.”

 

Since the Department of State advanced the current dates for Indian and Chinese individuals in 2007 and then EB-2 towards the end of 2011, a lot of people filed for adjustment of status (I-485).  Along with that filing they got the initial Employment Authorization Document and advance parole (travel document).  Those documents can be extended yearly until one gets the Green Card (Permanent Resident Card).  So technically one does not need the H-1B

Please note though that once you don’t extend the H after 6 years of being in H status, it disappears.  You cannot extend it anymore.  If you want to get back to the H quota, you will have to go back for one year,  then you will have to wait for the next fiscal year, and might have to get into the lottery which happens some years, including this year.  In other words its close to impossible to get back the H status if you don’t keep extending beyond 6 years.

The work and travel permits are dependent on the I-485.  This is applicable to the principal alien filing the I-485, ie the person for whom the employer filed the Labor Certification.  As long as the I-485 is valid (ie the Employer still wants to continue the process) there should be no problem.  The problem arises though when the sponsoring employer does not want to sponsor anymore.

 

However if the principal alien has a new employer after 180 days of filing the I-485, that new employer can transfer the Green Card (Permanent Resident Card) process through AC-21.  The job has to be “same and similar” to the job described in the labor certificate.  In this situation, the I-485 will be valid for the principal and the dependent aliens as well.

 

If it happens to be a job in a completely different area, the new employer can start a whole new process of PERM- Labor Certification.  The principal alien will still get the old Priority Date, but in this case the I-485 will no longer be valid. And if the principal and dependent aliens don’t have a valid H-1B visa, they cannot do this.

 

The bottom line: The H-1B visa provides a second layer of security and should be extended if cost is not a consideration.  However if cost is a factor, one needs to do a cost-benefit analysis.

 

Contact Houston Immigration Lawyer, or Houston Immigration AttorneyAnnie Banerjee, for more information

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