The Oct 2020 bulletin makes me eligible for GC/485 EAD+AP with a downgrade. Seriously considering it. Couldn't find anything which exactly covers this topic, so posting here for confirmation of facts:
- With 485EAD, I will be able to take side assignments and get paid on a 1090 basis (any job type, uber, bartender etc.)
- With 485EAD+AP, the AP can be a 'backup' port of entry option and I can use it if I wish to but can still enter on H1 even while having the AP
- There is no limitation on the number of hours I can work using the 485EAD
- As long as I meet my obligations under H1B, there is no need to report 485EAD related income/status to the H1B employer. I could well work for other companies on W2(tax withholding) basis.

Requesting replies to separate fact related responses (e.g. a caveat to a fact stated above) vs. opinions/situations where these facts may be useful.
 

wagecuck3

Member
Most of what you've written is true and uncontroversial.

The one thing people argue about is "can someone maintain H-1B status while using the EAD for side jobs?" I strongly believe the answer is "yes" but there are those who disagree
 

SusieQQQ

Well-Known Member
Most of what you've written is true and uncontroversial.

The one thing people argue about is "can someone maintain H-1B status while using the EAD for side jobs?" I strongly believe the answer is "yes" but there are those who disagree

I understood using an adjustment-based EAD invalidates the previous status - so the person can work whatever jobs they want, but no longer has H1B status. This is also indicated in this AILA document:

After receiving the EAD, the alien may work for any employer desired and is not subject to E,H, or L restrictions. However, such an alien would lose his or her E-1, E-2, h-1b, or L-1 nonimmigrant status by working in open-market employment.
https://www.aila.org/infonet/ins-considerations-for-adjustment-of-status
 

wagecuck3

Member
I understood using an adjustment-based EAD invalidates the previous status - so the person can work whatever jobs they want, but no longer has H1B status. This is also indicated in this AILA document:

After receiving the EAD, the alien may work for any employer desired and is not subject to E,H, or L restrictions. However, such an alien would lose his or her E-1, E-2, h-1b, or L-1 nonimmigrant status by working in open-market employment.
https://www.aila.org/infonet/ins-considerations-for-adjustment-of-status
I agree that if you take this literally, it suggests that using the EAD for a side job would terminate H-1B status. However, I think that this is just imprecise wording and that conclusion is not intended.
 

SusieQQQ

Well-Known Member
I agree that if you take this literally, it suggests that using the EAD for a side job would terminate H-1B status. However, I think that this is just imprecise wording and that conclusion is not intended.
Why is H1 different from other statuses, in that case? Use of EAD definitely invalidates other statuses, we have seen reports of people being made to leave the US when 485 denied and they have invalidated their previous status through use of EAD.
 

wagecuck3

Member
Why is H1 different from other statuses, in that case? Use of EAD definitely invalidates other statuses, we have seen reports of people being made to leave the US when 485 denied and they have invalidated their previous status through use of EAD.
If a person uses their EAD to leave the job that sponsored their H-1 or L-1 status and start a new job, they will definitely lose that status. However, I believe that status can be retained if the EAD is used solely for side employment while the person continues to do their main job that the nonimmigrant status is based on.
 

SusieQQQ

Well-Known Member
If a person uses their EAD to leave the job that sponsored their H-1 or L-1 status and start a new job, they will definitely lose that status. However, I believe that status can be retained if the EAD is used solely for side employment while the person continues to do their main job that the nonimmigrant status is based on.
I'm not trying to be annoying, I’m just trying to understand- can you explain why you believe that? Compare to example F1 where the student maintains study (the main purpose of the F1), but uses the EAD to take jobs not normally allowed on F1 - so it’s a very similar situation to what you are saying - but for F1, that has invalidated the status.
 

wagecuck3

Member
I'm not trying to be annoying, I’m just trying to understand- can you explain why you believe that? Compare to example F1 where the student maintains study (the main purpose of the F1), but uses the EAD to take jobs not normally allowed on F1 - so it’s a very similar situation to what you are saying - but for F1, that has invalidated the status.
Are you sure that an F-1 student, who maintains their studies, and also has a side job that they take up using a (C)(9) EAD, will lose their F-1 status? Perhaps you are right, but I haven't heard of that happening. Did USCIS actually make a finding that their status had been invalidated, or were they just making an assumption?

There are several reasons why I believe what I say:
1. I spoke with a lawyer, whom I trust, who explicitly told me that it's possible to maintain H-1B status while using the EAD for a side job. But she recommended that I not do so - in order to avoid any suspicions about the intent of my EB adjustment application.
2. There's nothing in the law that says that H-1B status is lost if the EAD is used for side employment. It is clear, from 8 CFR 214.1(e), that unauthorized employment is a status violation, but of course, employment based on a (C)(9) EAD is authorized employment.
3. What about H-4 spouses? If an H-4 spouse works on a H-4 EAD, that obviously is consistent with their status. What if they file for AOS and switch to an AOS EAD? Are they now out of status because they have a different type of EAD, despite the fact that both EAD types allow them to do exactly the same employment? Wouldn't that be silly?
 

SusieQQQ

Well-Known Member
1. Well, I am always suspicious of “legally you can but i don’t suggest you do”, especially when other lawyers say don’t.
2. As I already said I don’t know if there is something specific on H1, which is why I asked. As to your question on the F1 case, the way it was relayed to me was that when they got the letter of denial of adjustment of status they were also informed (in the same letter) they now had to leave the US as they no longer had status (that’s obviously not word for word but the gist of it). Maybe the dual intent makes a difference (as it does with Not needing AP), however this is not something you brought up and I assume your lawyer would have mentioned this as the reason if it was the case so I guess not.
3. I don’t understand what you’re trying to say on this. Using an AOS-based EAD does not put you “out of status”, and I never said it does.

I suggest OP get an actual lawyer to give advice.
 

wagecuck3

Member
My point is this: a person with H-4 status normally is not allowed to engage in any employment. If they were to do so, they would go out of status. But once they have an EAD, they can work, without going out of status. And that's true regardless of whether they have an H-4 EAD, or an AOS EAD. Right?

So how does that apply to H-1B? Normally, an H-1B is only allowed to work for their petitioning employer, and any side employment would violate their status. But if they have an EAD, then it means they can do that side job, without going out of status, since it would no longer be authorized.
 
A. Great discussion! OP's plan is to keep my H1B job till GC is received. In the meantime, EAD will serve me well for side gigs (most will be technology related)

B. I believe EAD has nothing to do with ability to enter the country. That is the (advance parole) AP part which is granted as the immigration case is pending.

C. My understanding is that if you enter using your AP, one loses their H1 status as they have entered as an 'immigrant'. And for that reason, if one wants to retain their H1 status, not use AP and treat that as a fail safe/insurance. The AOS/485 EAD+AP is like a chocolate you can lick but not bite :p
Another analogy: it is a toddler with new found freedom to run, but requires parental (attorney) oversight to ensure the walk is proper :)

D. As regards to this line from AILA : However, such an alien would lose his or her E-1, E-2, h-1b, or L-1 nonimmigrant status by working in open-market employment. This makes sense if EAD is used in lieu of H1. To maintain H1 status one needs to be sufficiently working. However if you work your H1 hours and on top of that do side gigs using EAD it should be fine (again ensure parental guidance)
 

mail4gargs

New Member
Hello,

My PD is 6-Feb-2012 (India). Child is 15.5 years

My employer's attorney is forcing to amend existing I-140 from EB2 to EB-3.. While I heard there is option to file for new I-140. how can I deal with this? What are my options?

Thanks,
 

whitemimauz3

Registered Users (C)
I believe you should utilize window of opportunity. Your employer can filed downgraded EB3 & that entitles you and your spouse & dependent kid to file I-485
 
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