Pending I485, Resigned from H1B, What is my status?

[martindh]

I am pending family sponsored (F2A) I485, if I resign from my H1B based job, what would be my legal status? Can I legally stay in the US?

[newacct]

You would have no status. You can stay in the US as you have a pending I-485.

[martindh]

Can I change back to H1B after using EAD while pending I485 without leaving the US?

You would have no status. You can stay in the US as you have a pending I-485.

Thanks for your reply. I have a follow up question to ask. So suppose that I have resigned from my old job and I have received my EAD. Then I choose to use my EAD to start my new job. I understand that this effectively terminates my H1B status. But my question is, if my new employer also filed a new H1B petition and it gets approved, can my status automatically change back to H1B? if not automatically, can I file some kind of application to change my status back to H1B without leaving US? The reason I may want to pursue this specific course of actions is because 1. I want to start working as early as possible for the new employer. So I can choose to use EAD while waiting for the H1B transfer. 2. I want to be able to change my status back to H1B so that I have the ability to re enter into US board in cases I have to travel aboard because I don't have AP. The potential problem is hence my question: Am I able to change back to H1B after using EAD without leaving the US?

[inadmissible]

You will receive a combo EAD and AP card as part of your adjustment of status process

[martindh]

You will receive a combo EAD and AP card as part of your adjustment of status process

But I never applied I131, I don't think USCIS will send me AP automatically, no?

[inadmissible]

If you are concerned about the possibility of travelling abroad during the adjudication of your adjustment of status application, you will be well served by applying for advanced parole. It is a slam dunk - a sure thing - as opposed to a H, it is free (since you already paid to file for adjustment of status), and takes half the time to process

[martindh]

If you are concerned about the possibility of travelling abroad during the adjudication of your adjustment of status application, you will be well served by applying for advanced parole. It is a slam dunk - a sure thing - as opposed to a H, it is free (since you already paid to file for adjustment of status), and takes half the time to process

Yes and I am going to apply for AP today but that takes time. The question I am facing right now is can I choose to use EAD to work next week, then one week later when my H1B is approved, I switch back to H1B immediately, without any further paperwork or having to leave the US and re-enter again? I know the question sounds silly and I probably should just wait for H1B without going through all these hustle and risks but I just want to confirm here if I can or I can NOT to do that because I want to know all of my options. Thanks.

[inadmissible]

Assuming your H COS is granted, you can travel abroad without abandoning your adjustment application if you are returning on the same H visa to the same job. You will need to get a new visa foil at the consulate abroad if the current one is expired. If H COS is denied you can remain employed on your AOS EAD but can not travel abroad without abandoning AOS. If you travel abroad with a valid H visa but are unable to return the United States to do the same job (whether voluntarily or involuntarily as a result of being being fired or retrenched) your AOS will be deemed abandoned

[martindh]

Assuming your H COS is granted, you can travel abroad without abandoning your adjustment application if you are returning on the same H visa to the same job. You will need to get a new visa foil at the consulate abroad if the current one is expired. If H COS is denied you can remain employed on your AOS EAD but can not travel abroad without abandoning AOS. If you travel abroad with a valid H visa but are unable to return the United States to do the same job (whether voluntarily or involuntarily as a result of being being fired or retrenched) your AOS will be deemed abandoned

Thanks for your reply. What about my H1B visa stamp is for my old employer and I travel aboard after my new employer's H1B petition is approved. When I return, can I use my old visa stamp combined with my new H1B approval notice to enter US and still have my I485 in a valid status?

[inadmissible]

Yes, although relying on H visa continuance is an unnecessary risk if you can wait for AP to be granted

[martindh]

Yes, although relying on H visa continuance is an unnecessary risk if you can wait for AP to be granted

Understood. I just submitted I-131 today. Any idea how long it will take?

[inadmissible]

It is supposed to take 90 days, but lately I have seen it take 4 months. It might be quicker starting in April when USCIS stops H premium processing, because USCIS will be able to allocate more resources towards adjudicating other applications