EAD question

M

mike_li

Registered Users (C)
I have both EAD and H1B at hand (current H1B expires June 2004).

I understand that I can use EAD to work without extending my H1B.

My question is-- if something unseen happens in the future, for example, I485 gets denied, can I switch back to H1b from EAD?

Is it a good idea to extend my H1B while keeping EAD?
 
People usually try to be on H1 while 485 is pending just to make sure that if something does go wrong with their 485, they can still be legal and continue working.

If you use your EAD and do no re-new your H1, then if you do need to switch to H1, you will have to apply for a new H1 (NOT extend your current H1). As you know that if the quota for H1 is over, you will have to wait untill the next year starts. Also from the time your 485 is denied and the time you get your new H1 approved, you will have to be out of USA or else you will be illegally present in USA.

Another reason to be on H1 is that, you don't have to keep renewing your EAD and AP every year, hence saving lot of time and money. However, if you are beyond your 6th year of H1, you might as well be on EAD.
 
Differing Thoughts

I heard ideas similar to described above before, however, I personally think there are benefits to NOT TO EXTEND H1-b:

1. If you don't extend, that means you can save the remaining years so you can use in future. This means you may need to leave US and apply H1b from outside, but at least you don't have to stay outside US for 1 year in case you use up 6 years H1b and I485 denied. And if you have a spouse under H1b, you can fall back to H14 under Spouse H1b, which means you may not have to leave US?

2. For a person who will need to travel internationally, if (s)he uses AP to enter US rather than an H1b visa, will that mean the person will be considered abondoned H1b (excluding cases where H1b extension is approved AFTER the most recent entry into US using AP), thus be foreced to use EAD to work? If this is the case, for this person (s)he will be forced not to use H1b anyway, thus no point to renew.

Any thoughts? These are just my own thoughts, like to verify with experts here.
 
Mingjing, your second point is not accurate.

If a person uses AP to enter US, but continues to work for the same employer that had filled his/her H1, and had never used EAD, that person is still on H1 status and will not require an EAD to work.

Please read the articles at the following links to get more insight of the H1/L1 Vs. AP/EAD situation.

http://www.murthy.com/UDnewins.html

http://www.immigrationlinks.com/news/news301.htm
http://www.vkblaw.com/news/fivehundredtwentyfive.htm

http://www.shusterman.com/h1memo500.html
http://www.shusterman.com/hl-99regs.html
 
guju

You have replied my question before regarding EAD and H1-B. Have one more question.
I obtained my 1st EAD in Jan '02 and my 1st H1-B applied thru current employer expired in Sep '02. I didn't apply for extension of H1-B that time. Then when I applied for my 2nd EAD, I didn't get that approved on time before expiry of my 1st EAD. So my employer applied for new H1-B(as old one expired and cannot be extended) in Jan '03 thru Premium Processing and got approved for me to continue my job without any gap. Now I applied for my 3rd EAD which was not approved yet and 2nd EAD is expiring this monthend. Do you mean that I am legally allowed to work with my H1-B which is valid until Nov '04 eventhough I used 1st EAD for my work? All thru I am with the same employer and only thing is about 4 months I used EAD. Please reply. Thanks.
 
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