H1B / EAD related issue

[Hemang]

Hi,

I an interested in getting information about H1B and EAD in the scenario explained below,

My Six years of H1B is expiring in March 2003 and have applied for I485 in Novemebr 18, 2002.

I will be getting my EAD shortly. Even after getting my EAD is it required/advisable for me to extend my H1B visa?

I also have another question relating to my friends EAD renewal. How early can he send my EAD for renewal considering that EAD these days takes 2-3 months. Is there any specified rule regarding EAD renewal?

Will one be termed as 'out of status' if EAD renewal doesn't reach before the expiration date. I know we are not allowed to take salary for the period when we don't have renewed EAD. Because of this if we miss any paycheck, will this create problems if we get any RFP for salary slip? If one has an understanding with the company not to take salary till one gets EAD renewed, is it possible to take bulk salary for those months and not be termed 'out of status' once EAD is renewed.
Hope I have not confused anyone.

TIA,

 

[prajaram]

Hemang,

Interleaved are my answers.

I will be getting my EAD shortly. Even after getting my EAD is it required/advisable for me to extend my H1B visa?

I don't know for a fact if INS would refuse an H-1B extension, past the 6 year period, if they come to know that you already have an EAD. But, if EAD and H-1B ext. are both applied for at the same time, there is a good chance that you will get both as INS's left hand doesn't seem to know what the right hand has doled out! (this was my case)

If INS comes to know that you are already in possession of an EAD, there is chance for them to query as to why you need it. This, I am stating, because in the extension petition you have to clearly mention as to why you need it and that it is because of AOS. And, H-1B extensions (past year 6) are done on a need basis!

But, forgetting about what is said above, if you can get H-1B extended AND a VISA stamp from the state department (not the fastest thing to accomplish) then in my opinion, that is the best. You will not run into the problems of AP etc etc, with H-1B.

I also have another question relating to my friends EAD renewal. How early can he send my EAD for renewal considering that EAD these days takes 2-3 months. Is there any specified rule regarding EAD renewal?

2 months at a minimum if you don't want to cut it too close.

Will one be termed as 'out of status' if EAD renewal doesn't reach before the expiration date. I know we are not allowed to take salary for the period when we don't have renewed EAD. Because of this if we miss any paycheck, will this create problems if we get any RFP for salary slip? If one has an understanding with the company not to take salary till one gets EAD renewed, is it possible to take bulk salary for those months and not be termed 'out of status' once EAD is renewed.

No, you will not be "out of status" because of lack of EAD. You CAN NOT legally work! And, I don't think you can "volunteer" either, legally speaking! In strictly my opinion, the gap in paychecks created by this will not be viewed as unfavourable by INS. Others might disagree.

It is possible to do what you are contemplating. But, given the delicate nature of the present situation, I don't understand as to why you and the company would risk it! Bulk salary could be received under so many different names! bonuses, overtime pay (for only in-company work) etc etc. But, "out of status" should never be your concern after 485 having been filed.

Hope that I haven't confused you further.

 

[mavishka]

Hemang:

To answer your questions:

Q: Even after getting my EAD is it required/advisable for me to extend my H1B visa?
Ans: Extending H1 when you haven't completed 6 years makes sense, 'cos if something were to go wrong with your 485 you could fall back on the H1 and still be in status. But since your 7th year H1 extension is tied to your AOS application, it makes sense to work on an EAD. You'll need to file a new I-9 with your employer.

Q: How early can he send his EAD for renewal considering that EAD these days takes 2-3 months. Is there any specified rule regarding EAD renewal?
Ans: The INS site states that EAD renewal applications should be sent in ideally 6 months before the current one expires. In reality it's safe to send it at least 3-4 months before the current one expires, so that if you don't receive the renewal on time you could obtain one from the local INS office. These days I think EAD renewals are taking about 2 months or so.

Q: Will one be termed as 'out of status' if EAD renewal doesn't reach before the expiration date?
Ans: Practically, it's unlikely that your HR is keeping a close tab on your work authorization. However, it's possible that some employers may keep a close eye. In which case, depending on your relationship with them, you could convince them that the renewed EAD will be retroactive from the expiry date of your previous EAD. If they agree, you don't really need to stop working. If you go by the book then yes, you'll need to stop working till you get your renewed EAD, but then it's not a perfect world.

Your not having an EAD doesn't make you out of status, it just means that you cannot work, legal status-wise you ARE in status since your application to adjust status (485) is pending. Hope that makes sense.