H1B Renewal while using EAD

[svnml]

Hi,

1. I received my EAD for the first time in last year(2007) and applied for its renewal this year and received it as well for another 2 years, i.e., till 2010.

2. I am with the same employer through whom I have applied for my Green Card. Right now my 485 is pending.

3. I was on maternity leave till the first quarter of this year and soon after that I have joined back to my work using my EAD rather than my H1B.

4. The reason I am saying that is my employer started running my payroll that matches with my Labor approved for GC. That pay doesn't match the Labor approved for my H1B.

5. It is because my company has permanently employed me for that position and started paying me based on my EAD.

6. Now, I have this situation. My H1B with the same employer is getting expired by this month.

7. And, my attorney is asking me to extend my H1B. He is saying that if I apply for my H1B extension now, as my 485 is currently in pending status, I will get an H1B extension for another 3 years. If anything happens to my 485, I can get on to my H1B, stay back and again apply for Green Card.

8. I am really confused what to do now, whether it is good and legal to extend my H1B or stay back just with EAD. THE MOST IMPORTANT QUESTION THAT IS RUNNING IN MY MIND IS HOW WILL I SUPPORT THE PAY THAT I AM GETTING RIGHT NOW IF I APPLY FOR H1B EXTENSION.

Guys, for some reason I feel that my attorney is misleading me for his fee (the fee he takes for any H1B service is $2000) and by applying for H1B extension at this point is going to push me into more trouble in future by not able to support either H1B or EAD status. The attorney office is saying that the INS cannot figure out whether I am running my payroll using my H1B or EAD as I am with the same employer. That is true. But, my pay shows that.

Please someone who knows what to do best at this point (Not to apply for
H1B extension or to apply), guide me. Your guidance is very greatly appreciated.

Thanks,

[txh1b]

Your attorney is right in why he is wanting to extend the H1b. If you are on a H1b, pay should be at least the LCA wages and you are protected to get that much as your pay even while on bench by the DOL.

I don't understand what the confusion regarding pay is? Is your H1b pay more or is your Green card pay more? The H1b can be extended with the pay you are currently getting and the lawyer knows better how to handle it. It is their daily bread and butter.

[svnml]

So, that means whatever the payroll my company is running for me taking me on EAD basis is illegal? My Green Cad pay is less than H1B. According to DOL also that is what it is.

[txh1b]

Your employer is having the convenience of paying you less when you work on EAD and bench without pay is permitted while working on EAD. You do the math.

[svnml]

Hi txh1b,

Thanks so much. Exactly that is what I am wondering here. GC Labor approved wages are less than H1B Labor approved wages. Though I got my H1B extension done last year, from the mid of this year my employer has taken me totally on full time basis for the position he filed the green card for me and paying me so according to its Labor. That means it will be considered as I am using EAD.

And, at this point if I apply for H1B extension this year, how should I support it at INS in future. What should I tell them if they ask me about my status this year? Will the status be considered as H1B or EAD? As my payroll for this year shows less amount, I have to support it if I say that I am on H1B. Or if I say that I am on EAD, then they may ask how could I apply for H1B extension after I started using my EAD status as H1B becomes automatically invalid once you start using your EAD.

Totally confused. Do you think it is still a better idea to apply for H1B extension?

Thanks,

[txh1b]

You have to understand some basic points.

You are allowed to extend H1b for a different position (your GC position) now with a different salary as long as it meets the LCA min wages as required by the law for that position which it will anyway.

You can be working as a parolee and extend H1b. You are worrying too much about things that you should not worry or need not worry about.

[svnml]

Hi txh1b,

Thanks so much. For the whole conversation, I forgot to mention one thing. This whole thing whatever I am talking about is only about one company. Let's say for example, my company name is "A". I have applied for my GC through company "A"...and right now I am working on EAD for the same and wants to extend my H1B for the same. That was why I was worried so much thinking that whether I can process so many things through the same company at a time.

But based on your answer, I understood that I can do that. I hope I understood properly whatever you told me. If not, please correct me. And thanks so much again. You really made my day.

Thanks,

[txh1b]

You got it right.