Legal Question in Employment Law in California

1. No, an H-4 derivative of an H-1B visa holder is not allowed to gain an EAD under 8 CFR 274a.12, "Classes of aliens authorized to accept employment," which may be referenced on www.uscis.gov. You will need to obtain a different form of status to obtain an EAD. With your educational credentials, you may consider transferring now to the H-4 and then seeking an H-1B for a start-date on Oct. 1, 2009. There are still H-1B visas available.

Also, understand that you cannot work even if you have a SSN, since that requires valid work authorization. Since your L-1B is terminated and you cannot be authorized with the H-4, you will not be allowed to work until other status is obtained. Working in the U.S. without authorization (if discovered) will immediately cause your visa to be terminated and you will start to accrue unlawful presence, so I would be very careful (especially since an SSN is used to report wages, and the USCIS may discover your unauthorized employment due to an employer's federal reporting requirements).

2. See above, as you cannot obtain an EAD as an H-4 derivative of an H-1B. You must seek work authorization through a different nonimmigrant status such as another H-1B, O-1, or permanent residence.

3. You can apply immediately for the H-1B. It is expected that H-1B visas will continue to be available until around October, when applications will rise. But, if you are going to enter the U.S. soon, best to wait until you are admitted in H-4 status and then apply for the H-1B. You cannot start working on the H-1B (if approved) until the fiscal year starts on October 1, 2009.

4. It's not far off from October 1, 2009, so I would definitely have the H-1B petition ready to be filed. If you need to travel soon into the U.S., using the H-4 may be your best way to get here quickly. If you apply for the H-1B now, it may limit your ability to enter until October 1, 2009.

Please feel free to contact me at [email protected] for more information about pursuing an H-1B application. Once all necessary documentation is submitted to our firm we can have it filed in less than 10 business days. Also, know as an out-of-state attorneys I can legally help you because I am permitted to practice federal immigration law outside of your state of jurisdiction.

Regards,

Michael A. Harris, Esq.