New employers H1-B I-797 at Port of entry

I work for company A and I travelled to India in June and returned in Aug 2021. Before traveling to India, I had my H1-B transferred to a company B and have approved H1-B from company B. At the port of entry I used my new I-797 from company B, with a valid visa from company A as company A’s H1-B was expiring in 4 months. I was about to join Company B in Sept 2021, but unfortunately I did not join company B and still work for company A. Now it is time for extension for company A’s H1-B. I have pending I-485 with company A and EAD/AP approved valid April 2022.

  1. Will I get approval?
  2. Am I being considered as employee of company B for my immigration status?
  3. Does the mentioning of the new 1-797 case number in passport stamp entry say anything?
  4. Should I even apply for H1-B extension from company A or join company B? What’s the safest best?
  5. I am applying for new EB-2 I-485 with my current employer A as my Eb-2 priority is current from 01/01/022.

Thank you for your inputs. I appreciate it.

Ideally you should use I797 from the employer you will be working for from the day you enter the US.

I think it will be approved.

CBP issued I-94 based on emplyer B petition however I think it is ok if the beneficiary changed mind to not join employer B for whatever reason. In case of RFE you will need to explain the reason.

It means you entered the US with intention to work for employer B.

There is no safest approach as such. It is up to you to decide what to do but at the end of the day any RFEs will need to be replied based on facts. This is the most you can do in such situations.
Consult a lawyer if you have doubts.

In this situation I would just stick around with current employer.

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Thank you Kalpesh. This clears my doubt. My attorney also said the H1-B extension may be approved.

@Kalpesh_Dalwadi I got RFIE for H1-B extension. Waiting for the actual notice. The attorney says it may be for paystubs from company B which I did not join. My current H1-B visa stamping expires by 01/20.

  1. I have GC EAD valid till Apr 22, and I have applied for extension. Can I switch to EAD in case H1-B extension is denied.
  2. If I just get my H1-B approved but with no I-94, can I travel to Canada/Mexico to reenter US using AVR? Do I need Mexican visa to enter Mexico by air? or can I travel by road to the border without visa and enter USA? Same question for Canada also.

Appreciate your response.

Sure you can considering all pros & cons of using EAD.

You can’t if your I-94 is not valid. You will need to go for stamping. For AVR to work you will need a valid I-94.

@kalpesh. Thanks for your inputs. I have valid I-94 till 2024 which I got when I entered USA last time. Will it get invalid if H1-B approval comes without I-94?

That is from employer B for which you never worked. You need to consider the I-94 for the employer you are currently working for.
I would not worry about anything till USCIS gives their decision. If H1B extension is approved without I-94 for whatever reason, you will need to go for stamping.

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Thank you @Kalpesh_Dalwadi for answering my questions patiently. One another question.
My wife’s H4 EAD is expiring next week. Can she apply for H4 EAD extension with the H4 approval she got from employer B’s H1-B petition? Or should we mention the current employer A’s H1-B extension receipt notice which is pending as basis for maintaining H4 status? She also has valid I-94 till 2024 and has GC EAD as well. We just want to maintain H1/H4/H4 EAD status till our I-485 is processed. Sorry for asking too many questions.

H4 is not tied to employer so you can use her current valid I-797 and your H1B receipt along with other supporting documents for applying EAD.

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