QUESTION

My wife and myself both are working on H1B. She on academic H1B and me on industrial H1B. I applied concurrently for Eb1b based I-140/485. Have obtain

Asked on Oct 23rd, 2011 on Immigration - Connecticut
More details to this question:
My wife and myself both are working on H1B. She on academic H1B and me on industrial H1B. I applied concurrently for Eb1b based I-140/485. Have obtained EADs. My wife has obtained an industrial job offer and plan to start work on EAD but plans to apply for H1B through that new company side by side of starting the work. I-140/485 through myself is pending and since there may be a chance of Eb1b based 140/485 denial she plans to apply for H1B also. Is she able to start work on EAD and apply for H1B? Would it matter to H1B if I-140/485 gets rejected before or after the filling. Or on other words would she be able to stop work for some time and file H1B if I140/485 gets rejected. As you see there are a lot of interrelated questions.
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1 ANSWER

If your wife starts working on the EAD first, she will no longer be in H-1B status and could not file for an H-1B extension from within the U.S. through that company.  She can start on the EAD, but the H-1B would need to be filed with consular notification request rather than an extension request because she would no longer be in H-1B status.  If the H-1B were approved, she would need to depart the U.S. and return with that H-1B approval and valid H-1B visa in order to commence work under H-1B status. If she is looking to maintain her H-1B because you are worried about your 140 and/or 485 being denied, she should file new H-1B paperwork through new employer.  She should not use EAD for work.  If she maintains her H-1B status, she may continue working on that H-1B even if 140/485 is denied.  If she uses EAD for work, she cannot continue using EAD if 140/485 is denied and she may have no status or permssion to remain in the U.S. if 140/485 weer denied. You may find some useful info on these issues at the law firm web site of Ron Klasko: http://www.klaskolaw.com/articles.php?action=view&id=48 Every case is different.  You may want to consult with an experienced immigration attorney who can review your specific facts and plans. Regards, Andrew M. Wilson, Esq. Serotte Reich Wilson, LLP www.srwlawyers.com awilson@srwlawyers.com    
Answered on Oct 28th, 2011 at 5:18 PM

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