Q & A: H-1B Portability vs. Family Based EAD

Question: I am on F-1 status now, after changing from H-1B, and my husband recently submitted an I-130/AOS on behalf. Right after submission of the I-130/AOS, I got a job offer I am really excited about and want to know if there is any way I can work with H-1B and apply for GC at the same time? Should I stop my green card case to let the employer help me get the H1B?

Answer: You should be able to work for the company, either pursuant to H-1B status, or pursuant to an EAD (which presumably was applied for with your I-485). There is no need to stop the family based green card process.

Under the H-1B option, the company may submit an H-1B petition on your behalf right away. This would not interfere with your I-130/I-485 family based green card application. Further, since you have previously held H-1B status and presuming you are otherwise eligible, you could begin working for the company upon filing of the H-1B petition, or in other words, you should be eligible to “port” your H-1B pursuant to AC-21 (American Competitiveness in the 21st Century Act).

Notably, there is some debate over whether the H-1B portability provision extends only to persons holding H-1B status at the time of filing. Considering the clear language of AC-21 Sect. 105(a) and prior USCIS practice of not opposing H-1B portability for those who have previously held H-1B status, but subsequently changed status to F-1 – it is our position that you may invoke H-1B portability to successfully start working for the company upon filing.

“A nonimmigrant alien…who was previously issued a visa or otherwise provided nonimmigrant status under INA Sect. 101(a)(15))(H)(i)(b) is authorized to accept new employment upon filing by the prospective employer of a new petition on behalf of such nonimmigrant as provide under [INA Sect. 214](a). Employment authorization shall continue for such alien until the new petition is adjudicated. If the new petition is denied, such authorization shall cease.”

Section 105 also provides a three-prong test for identifying the “nonimmigrant alien” who will be eligible for H-1B portability. Such an alien, in addition to having been previously issued a visa or otherwise provided H-1B status, must:

- Have been lawfully admitted to the United States;
- Have had filed on his or her behalf a non-frivolous H-1B petition for new employment before the expiration of his or her nonimmigrant period of stay “authorized by the attorney general”; and
- Not have been employed without authorization after his or her lawful admission and before the filing of the subject H-1B petition.

Your second [EAD] option, assuming you filed a Form I-765 application for employment authorization, is to wait 2-3 months for the EAD (employment authorization document) to be granted (which is the approximate processing time). You can start working for the company pursuant to your EAD (once you have it in hand).

Notably, while waiting for the EAD would delay your start date with the new company by 2-3 months, it would also allow the company to avoid the cost of filing an H-1B, which is considerable. Note that if for some reason, you did not file an I-765 with your I-485, you can do so now, but only once you have the receipt notices in hand from your I-130/I-485. Otherwise, USCIS will have trouble matching up the applications, which would result in delay.

Bottom line, in your situation, if there is an urgency to bringing you on board with the new employer, you should strongly consider the H-1B. Again, under H-1B portability provisions, you can start working for new employer as soon as the petition is filed. It should take about 2 weeks to prepare and file the H-1B. If you/the employer can wait 2-3 months, working pursuant to the EAD is the easier and cheaper option.