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How can I apply for an H-1B transfer with a pending EB-5 I-485?

I am currently working in the U.S. with an H-1B visa. I have filed I-485 with my EB-5 application and applied for an EAD card, which should arrive in the next three to five months. Now I want to switch my job to a short-term internship. Since my EAD will not be here now, can I apply for an H-1B transfer and start the new job immediately while the transfer is being processed? Will this have a negative impact on my EB-5 process? I don''t mind if the H-1B transfer application gets rejected. I only want to confirm that this plan will not impact my EB-5.

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    If you are currently maintaining a valid H-1B status, which is recommended until I-485 is approved, then you can port to a new employment once the new employer files an H-1B transfer petition. H-1B is a dual-intent visa and will not impact EB-5 process.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you have a valid H-1B, you can port to a new H-1B employer upon filing the new H-1B petition.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Based on your facts, the H-1B processing will not impact your EB-5.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    It should have no negative effect on your EB-5 application. That said, if you already applied for the EAD it might make sense to wait for it to be approved, which would grant you permission to work anywhere you want. If you cannot possibly wait for it to be approved in the next few months, there should not be any harm in applying for another H-1B. You will not be able to work in the new job until it is approved, though. With a pending EAD application, your new H-1B could be rejected, though. If that does not bother you, I suppose you don't have much to worry about it.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I do not believe it would affect the EB-5, but even though H-1B is a "dual-intent" status, that is usually meant for situations where the H-1B holder is waiting for an EB-2 or EB-3 to get current. I would need to review this more.

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    Stephanie Lee

    Immigration Attorney
    Answered on

    If you have filed I-485, you should have an EAD card soon. You can lawfully work in the U.S. You don't have to transfer your H-1B status to switch your job.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Although you can maintain the H-1B status (work/travel) using the existing H-1B visa while an adjustment of status is pending, my understanding is that you cannot file for an H-1B change of employer since you have a pending adjustment application. You may have to wait for the EAD here.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    Your new employer may file a new H-1B petition on your behalf upon receipt, and when it is issued, you are eligible to work again in H-1B status. However, once you have achieved your EAD, you could choose to work on that basis independent of your H-1B. Having a new employer file an H-1B petition should not have any negative impact on your EB-5 petition or your application for adjustment of status.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    That plan will not impact your EB-5 I-485. In fact, it is recommended to maintain non-immigrant status until your PR card is actually received.

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