Concurrent work on EAD and H1B

Discussion in 'Employment Authorizations (EAD) and Advance Parole' started by cerruti2827, May 9, 2009.

  1. cerruti2827

    cerruti2827 Registered Users (C)

    I would like to know if I can work as full time employee on valid H1B and work as part-time with another employer using EAD?

    Can EAD be used to work as independent contractor?
  2. TheRealCanadian

    TheRealCanadian Volunteer Moderator

    You can use the EAD to work part-time (or full-time) as an independent contractor, but this will terminate your H-1 status.
  3. cerruti2827

    cerruti2827 Registered Users (C)

    I am getting conflicting information.

    Attornies are saying that " Yes , you can use EAD for part time job as independant contractor. As long as you continue to work for the H1B employer and as long as you do not travel on the Advance parole, you will maintain the H1B status"

    Anyone else to share thoughts?
  4. jk0274

    jk0274 Registered Users (C)

    No, you will not remain in H-1B status. Whoever is telling you this is misleading you.

    These are not "thoughts", these are facts, by the way.
    Last edited by a moderator: May 11, 2009
  5. voldemarv

    voldemarv Registered Users (C)

    Your lawyer is absolutely right.
  6. mmed

    mmed Volunteer Moderator

    You will get conflicting answers in this issue as much as you keep asking this question. Everyone has his own argument and I think there is no official convincing answer anywhere. The people say this will void the H based on the fact that the H is one employer visa and if you work for someone else you violate the rules of H (not the rules of EAD or pending I485). Others say EAD is unrestricted to any employer and the USCIS issue it to you despite the fact that they know you are on H and still issue you the EAD. My opinion: if you work with relatively good salary for the H sponsor and do not want to take the risk of giving your H away and using the EAD everywhere, just work for the employer. If your salary is barely enough with one employer (For sure the threshold for satisfactory salary is very variable from person to person) and still do not want to give your H away, just use the EAD with another employer and update the forum with what will happen to your pending application.
  7. jk0274

    jk0274 Registered Users (C)

    Okay, people like Voldemarv would be well advised to do a little bit of research before dispensing personal guesses:

    From the USCIS website (emphasis added):

    Q : Who can an H-1B alien work for?
    H-1B aliens may only work for the petitioning U.S. employer and only in the H-1B activities described in the petition. The petitioning U.S. employer may place the H-1B worker on the worksite of another employer if all applicable rules (e.g., Department of Labor rules) are followed. H-1B aliens may work for more than one U.S. employer, but must have a Form I-129 petition approved by each employer.

    It is pretty clear, and well known, that if you work for any secondary employer who has not filed a I-129 on your behalf, you are in violation of H-1B status. While your work is still lawful by virtue of your EAD, you are not in H-1B status anymore. The lawyer was absolutely not right.
    Last edited by a moderator: May 12, 2009
  8. voldemarv

    voldemarv Registered Users (C)

    This answer doesn't say anything particular about having EAD and H1 at the same time. With H1 you can not work with other employer WITHOUT PROPER USCIS AUTHORIZATION. It's not exact wording but there is something similar in the law. And EAD is an authorization to work with different employer.
    Here is an example from my life. It's not exact scenario, but closed. My wife had H4. When we got EAD she started to work. Most people would say she violated H4 and she is no more in H4 status. OK. But when time come to renew H4 it was done by extending of status, not changing. And she continued to work on EAD during this change and after it was approved. So I completely agree with lawyer.
  9. mmed

    mmed Volunteer Moderator

    This is exactly what I said, no official answer anywhere, to the best of my knowledge, if you are on H with pending I485 and have valid EAD and this is the confusion come. Everyone, from your USCIS quotation, can guess and say different opinions. I am not supporting the idea of working on EAD and you are keeping your H by then and consider this is not a good idea at all. To use the EAD and not exhausting the years of the H is better in case your I485 get denied not the reverse.
  10. jk0274

    jk0274 Registered Users (C)

    I don't know what part of "H-1B aliens" along with "must have a Form I-129 petition approved by each employer" isn't clear. Yes you can work for another employer if you have an EAD, but then you are no longer an "H-1B alien".

    The USCIS is very clear: To retain H-1B status, each and every employer you work for must have an approved I-129 petition. To do otherwise is to no longer be in H-1B status. That's pretty clear to me.

    You are drawing straw man arguments: The answer doesn't say anything particular about having an H-1B and AP at the same time either. Does that mean a H-1B holder can travel and then reenter the US on an AP document and still keep their H-1B status? (Hey, the answer didn't say anything about that!) But obviously not, you can't do that. The answer also doesn't say anything particular about having H-1B and an iPod at the same time either, but you can't therefore make up your own rule that you can keep your H-1b status if you go work for another employer as long as you own an iPod.

    The H-4 extension you referred to is a slightly different matter - you can't "change status" to H-4 when you are out of status and don't have a status to change "from". Your wife was indeed out of H-4 status, but she remained lawfully present. The fact that the H is a dual-intent visa enables USCIS to grant extensions to people who have been working on EADs (assuming, of course, that they even know she was working - if her I-94 still showed H-4 then USCIS may have no way of knowing). Moreover, the Cronin memorandum specifically states that a "parolee" can apply for an extension of their H-1B/H-4 statuses. So what your wife did is actually within known USCIS regulations, not a random case.

    Case in point: If your wife was a J-2 or an F-2, would she had been able to file for a change of status from "adjustee" back to F-2/J-2? Of course not !! Anyway, I'm rambling on, but H-1B rules are pretty clear and it's not up to either you are me to make up our own interpretations.
    Last edited by a moderator: May 12, 2009
  11. voldemarv

    voldemarv Registered Users (C)

    You know, I'm not a lawyer. The author of this thread already consulted a lawyer, if he doesn't like answer, he can try another one.
    And just a thought for you, here is a paragraph from Cronin memo:
    2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an
    EAD based on their application for adjustment of status but does not use it to obtain
    employment, is the alien still maintaining his/her nonimmigrant status?

    Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate
    his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to
    apply for an EAD on the basis of a pending application for adjustment of status. However, an
    H-1 or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave
    the employer listed on the approved I-129 petition and engage in employment for a separate
    And "leave" is in cursive in original text.
    And yes, you can enter on AP and continue to work with current H1 employer. Can you show me the difference with H1 status in that case? What could not be done? Can't get H4 for wife? Any examples?

    Best regards,
  12. jk0274

    jk0274 Registered Users (C)

    I'm very familiar with this memo. Yes, you can continue to work without EAD if you reenter with an AP but you are not in H1b status anymore if you do so (with all the consequences this carries). But this is just further digression from the original topic. Again, working for an employer without an approved I-129 is a violation of H-1B status, regardless of whether you happen to have an approved I-129 elsewhere....
    Last edited by a moderator: May 13, 2009
  13. voldemarv

    voldemarv Registered Users (C)

    That's your opinion and I would disagree.
    I'll change it a little bit:
    "working for an employer without proper work authorization is a violation of status".
  14. jack23

    jack23 Registered Users (C)

    Good to read posts from long timers on this forum. All good info.
    Thanks for the discussions guys.
  15. cerruti2827

    cerruti2827 Registered Users (C)

    A slightly different but relevant issue to my original question on ead-

    I recently got EB-1 EA approved. The EAD/AP i have are linked to EB-2 NIW. My attorney wants to file a new I 485 based on recent EB-1 petition. I was told, if I had used my EAD or was on Parole status, I wouldnt be able to apply for another I 485. Good that the conflicting replies here kept from from using EAD so far.
  16. jk0274

    jk0274 Registered Users (C)

    Do you have the same A# for your EB1 and EB2 I-140s?

    I bet your attorney wants to charge you for this right? In actuality there might be no need if your NIW is still pending or approved (and you thus have a properly pending I-485). You can write a letter with a copy of the EB1 approval notice and I-485 receipt notice asking USCIS to link the files. There is no guarantee that the mail room at USCIS will process such unsolicited mail, but it can work. This might be easier (or even a fait accompli) if you have the same A# for all your cases.

    This is true only if: 1) You filed your NIW concurrently with your NIW I-140, and 2) your EB2 NIW has been denied, and 3) your EB1 I-140 which was just approved was filed after your EB2 (NIW) I-140 was denied, in which case you currently don't have a properly pending I-485 and will need to file a new one. If all these are true, it also means you wouldn't have been able to use your EADs and APs since the underlying I-485 had technically been denied since the accompanying I-140 petitions were denied.
    Last edited by a moderator: May 24, 2009
  17. cerruti2827

    cerruti2827 Registered Users (C)

    My EAD and AP are based on an approved I-140 ( EB-2 NIW HPSA). Please note that EB-2 NIW HPSA is different than the EB-2 NIW most people talk about here.

    The A numbers on the previously EB-2 NIW HPSA and recently approved EB-1 are same.

    I filed an EB-2 NIW last year which was denied; there was not I 485 linked to it.

    The EB-2 NIW HPSA is actully through a VA hospital- it requires that I work for total of 5 years for this hospital before I can get my green card. The I 485 remains pending during the above time frame, and USCIS requires to file a report , i think one year and 4 year after working to proove that alien is still working or VA hospital. This is a long (but relatively safe) route for Green Card. OBviously, i dont want to wait that long, therefore I applied for EB-1.

    I will find out soon why attorney wants to file new I 485 instead of using older pending I 485.
  18. mroncesvalles

    mroncesvalles Registered Users (C)

    Here's my 2 cents thought and I'm not a lawyer. You can work for another company other that your H1 sposoring company if you have EAD. WHY?

    1. They said you cannot work for a 2nd company if you don't have a valid H1B for that 2nd company. What if you want to work as a sales clerk. It does not qualify for an H1B therefore you cannot file I-129 for that.
    2. You can only use H1B for "only" the sponsoring company that is why they want you to have another H1B for the 2nd company so you'll have a valid work authorization. And since EAD is a valid work authorization then whats the problem if you use that?
  19. jk0274

    jk0274 Registered Users (C)

    Again, there are personal opinions, and then there are USCIS rules and regulations. One can speculate and argue for any position, but the rules are outlined as follows: For one to remain in H status, one has to have an approved I-129 from each employer one works for. This is the requirement for lawful H status. Of course you can use an EAD to work elsewhere, and that's permitted, but if you work for any employer without an approved I-129 from that employer (even if you also work for a separate employer with an approved H-129), then you will not be in H status anymore. You will be working legally of course, but you won't be in H status. Others may disagree with this interpretation, but what I just wrote is what I gathered from USCIS' own website.
  20. CyrRei88

    CyrRei88 New Member

    I realize that this post hasn't been updated in a while, but I think that my answer to it might still help people that are looking for information regarding this issue.

    I am currently working for Company A with an H1B visa. I got married to an US citizen 3 months ago. We filed for I-130, I-485, I-765 and I-131. Both the I-765 and I-131 got approved and I received my EAD card a few days ago.
    After reading many posts online I found conflicting information on whether I can keep using my H1B for my current employer while using the EAD for working part time.

    So today I called the UCSIS National Customer Service Center to get some clarification. After talking to 3 different basic customer service agent I was transferred to an "Immigration Service Officer". Here is what he had to say:

    1. Yes, I am allowed to work for employer A with my H1-B visa and use the EAD card for other jobs. My H1B status will remain valid even if I use my EAD for another company, as long as the EAD job doesn't interfere with the H1B hours. If the EAD job interferes with the H1B job hours, then the H1B would be considered invalid.

    This is based on me getting the green card trough marriage, so it might be slightly different if you are getting sponsored trough a company.

    Hope this helps

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