How does a gap in between EADs affect one's 485 ?

E

einuj somar

Registered Users (C)
There's a month gap in between the validity date of my 1st and 2nd EADs. My Lawyer who wants to keep everything straight sent a letter to BCIS requesting a new EAD card that will reflect an earlier validity date to close the gap between the 2 EADs. The request was recently denied by BCIS.

My question is - now that BCIS became more aware of the gap between EADs - will my GC application get affected in any way.
 
Originally posted by einuj somar
There's a month gap in between the validity date of my 1st and 2nd EADs. My Lawyer who wants to keep everything straight sent a letter to BCIS requesting a new EAD card that will reflect an earlier validity date to close the gap between the 2 EADs. The request was recently denied by BCIS.

My question is - now that BCIS became more aware of the gap between EADs - will my GC application get affected in any way.
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No. 485 will not get affected because of the gap between EADs.
 
Depends on other details.

Well, a gap between EAD as such should not cause problems, if

- You were either working on H1.
- You did not work during the period of GAP in EAD, if u were using to work with EAD.

Otherwise, it is an issue.
 
Re: Re: How does a gap in between EADs affect one's 485 ?

Originally posted by ar888
No. 485 will not get affected because of the gap between EADs.
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WRONG.

Read this on immigration-law.com :

06/06/2003: Complicated EAD Processing Rules and Increasing Instances of Failure of Obtaining EAD Renewal Timely

Those who file concurrent I-140/I-485 submission should familiarize themselves with the BCIS practice on issuance of EAD pending adjudication of I-485 applications. Basically, they should remember three rules of the current BCIS policy:
Rule 1: Pending I-485, the applicant is eligible to apply for EAD. If the EAD is not issued by the Service Centers within 90 days, the applicant should obtain Interim EAD at the local district offices, which the local offices should not deny.
Rule 2: Running of 90 days stops when the Service Centers issue RFE for initial evidence with reference to the underlying I-140. When the requested initial evidence is received by the Service Centers, the 90-day clock starts to run all over again. The previously suspended time does not count in counting the new 90 days.
Rule 3: EAD is issued "valid from the date of decision," and does not retroactively go back to the expiration date of the current EAD in the case of EAD renewal. If there is a gap between the two EADS and he/she works during the period of gap, it should constitute an unauthorized employment.

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Unauthorized employment is a big issue with the INS/BCIS/USCIS.
If your employment is solely on EAD (no backup like H1 or L1), you should be removed from the payroll during this gap.
 
If your employment is solely on EAD (no backup like H1 or L1), you should be removed from the payroll during this gap.
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doesn't being out of payroll mean that the person is illegal in this country during that period and may impact I1485 ?
 
You cannot get paid if your EAD has expired, period. Whether you can work or not is another matter. Officially, you cannot work. But the proof that you worked lies in the fact that you got paid. If you don't get paid, it is very difficult to find out if you had worked or not during that period.
To answer pinpong02's question, being out of payroll does not mean that the person is illegal in this country. You are in status and legally present in this country after you file your 485, till it is approved or denied. The impact of not having paystubs will be on your intent to work for your sponsoring employer in the future (i.e. after you get your GC). I think a month or two of unemployment should not matter much in that regard. A potential problem is if you get an RFE for paystubs at the time when you are not getting paid. You can always explain your condition to BCIS.
Anyway, consult your lawyer for the best approach.
 
Katipatang is correct.
Once you have filed I-485, you are in the period authorized by the Attorney General to stay in the country until a decision on your case is made.
 
Re: Re: Re: How does a gap in between EADs affect one's 485 ?

Originally posted by GC012002
WRONG.

Read this on immigration-law.com :

06/06/2003: Complicated EAD Processing Rules and Increasing Instances of Failure of Obtaining EAD Renewal Timely

Those who file concurrent I-140/I-485 submission should familiarize themselves with the BCIS practice on issuance of EAD pending adjudication of I-485 applications. Basically, they should remember three rules of the current BCIS policy:
Rule 1: Pending I-485, the applicant is eligible to apply for EAD. If the EAD is not issued by the Service Centers within 90 days, the applicant should obtain Interim EAD at the local district offices, which the local offices should not deny.
Rule 2: Running of 90 days stops when the Service Centers issue RFE for initial evidence with reference to the underlying I-140. When the requested initial evidence is received by the Service Centers, the 90-day clock starts to run all over again. The previously suspended time does not count in counting the new 90 days.
Rule 3: EAD is issued "valid from the date of decision," and does not retroactively go back to the expiration date of the current EAD in the case of EAD renewal. If there is a gap between the two EADS and he/she works during the period of gap, it should constitute an unauthorized employment.

---------------------------

Unauthorized employment is a big issue with the INS/BCIS/USCIS.
If your employment is solely on EAD (no backup like H1 or L1), you should be removed from the payroll during this gap.
Click to expand...

Ok, I assumed he is working on H1, as he was not clear.
 
Assuming that GC is for Future Employment, USCIS should not even care about RFEs and all that crap.

The fact that they issue RFE proves that they are interested in checking the whole history of the person.

Will this gap in EADs a possible reason to deny the I485 if the adjudicator is strict ?
 
Working without EAD

Case : Primary applicant of 485 and H1B is expired

In such a case, the primary applicant is forced to apply and work on EAD. 485 is employment based and without working, your 485 won't be approved. Say for e.g.you are in the approval period of your 485 and your EAD expired. According to the rules, you should not be working. But then if a RFE is triggered for your paystubs, what are you going to show to the BCIS.

If you say you didn't worked or cannot produce pay stubs because your EAD had expired, then what??

I guess BCIS makes rules, but does it try to evaluate the down side of it. to summarize what I said:

1. BCIS will approve your 485 but you need to be working
2. EAD helps you working without H1B
3. Without having an approved EAD you can't work.
4. During approval period, if BCIS see that you didn't work for the past 3-6 months, it shows you are not employed; meaning we won't approve your 485.

Sounds ridiculuos!!!



Am i right or wrong???
 
H1Blayoff,

You are right for the most part. One thing to keep in mind is that the excuse for not working because of a pending EAD can be misused. For e.g. people without jobs may purposely delay their EAD applications so that they can use it as an excuse for not working. The question is; how long a gap can the BCIS tolerate. I think it may be at the discretion of the officer handling that case. One to two months gap seems to be reasonable. I think a gap in employment in itself should not be grounds for outright denial. If you have been with your employer for a long time, and have been continuously paid, you should be fine as long as you can produce proof like your paystubs, tax returns etc.
 
H1BLayoff and Katipatang,

The burden of proof is always on us, the applicants.
In the past, USCIS issued several memos or public announcement encouraging us to apply for a renewal well in advance.

And you all know that if 90 days have passed and you haven't received the new EAD (as long as there's no RFE), you can go to a local USCIS office to get an interim EAD.

Based on this argument, USCIS can challenge you with this question: "Why didn't you apply earlier?"

Be careful on this "one or two month gaps seem to be reasonable". Currently the law says "No valid EAD = no work".
USCIS people are working under 'zero tolerance policy' these days. Nobody wants to be blamed for anything anymore.

So key message is: send your renewal WELL IN ADVANCE to avoid any delays/problems in the future.
 
Some on should work or not in following situations:

EAD is approved but did not get the physical EAD because of USPS or some other problem
 
Would it matter if the dependent has gap in EAD

Guys,

If a dependent had a gap in Ead would it impact the 485. My wife had a little gap but she never worked with EAD.

Thanks
dfox
 
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