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Take new job on EAD or H1B transfer?

Arlington, MA |

I am on H1 B visa with employer A, who has also sponsored GC. MY PD is Jan, 28, 2009 in EB2. The 485 was filed in 2/12. I got EAD too in 3/12. Since PD for my country of chargability has retrogressed, it will be a long wait to get GC. In the meantime I have a new job offer (same field of work, and responsibilities), and I am planning to take it. I understand under AC 21 one can switch jobs if 485 has been pending for over 180 days, and I need to submit a letter informing USCIS. My question is I would I start my new job using EAD? Or instead as a second option could I file AC 21 and transfer H1B? (I understand EAD and H1 B are 2 different non-immigrant and immigrant statuses and not transferable or inter-changable.)

Thank you for your reply. I have a second part to the question. The new job is a promotion - I will be moving from being a Senior management consultant to a Director, having the same responsibilities. The job requirement for the senior consultant is Masters (that is what the PERM approval was based on to apply for GC in EB2 category), the new job lists Masters as preferred degree. Is there a note of caution or concern here?

Attorney Answers 2


Good and smart question. You've done your homework. Yes, you can use your existing EAD BUT if at all possible, also port (transfer) your H-1B to a new employer so that in case something goes wrong with your I-485 at least you remain in status on your H=1B and you have more options then letting your H-1B lapse and no longer have a status to fall back on. I would apply for a porting application of the H-1B as well. Good luck.

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I agree with my colleague here. Porting your H-1B via AC21 is the preferable option here. Let me know if you would like our office to assist you. - Disclaimer: This a general answer to your legal question. Unless you have a signed engagement letter with me, you should not consider this information to be legal advice.

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