I-140/I-485 concurrent filling & work

D

dvila

Registered Users (C)
Guys,

I'm asking about what I should do in this case:
I've been working in US as a researcher for 2+2 years with a J1 visa. My wife is J2 and she get an EAD to work. After getting the waiver for 2-year residence I applied by myself for the green card concurrently (I-140/I-485). I also applied for EAD and AP.
My I-140 was approved today and next week I've the appointment for FP (I-485).
At the same time, my employer applied for an H1-B for me (just in case of a delay or denial of I-140) and a H4 for my wife using PP. Because I'm working in a non-cap institution, I suppose that I'll get both H's next week. Here is my question:

What my wife should do? She need to stop working once she get the H4 and wait for the EAD or GC (which come first)? If EAD is in process now and the I-140 was approved, can she continue working legally?

Thank you for your help!
 
dvila said:
Guys,

I'm asking about what I should do in this case:
I've been working in US as a researcher for 2+2 years with a J1 visa. My wife is J2 and she get an EAD to work. After getting the waiver for 2-year residence I applied by myself for the green card concurrently (I-140/I-485). I also applied for EAD and AP.
My I-140 was approved today and next week I've the appointment for FP (I-485).
At the same time, my employer applied for an H1-B for me (just in case of a delay or denial of I-140) and a H4 for my wife using PP. Because I'm working in a non-cap institution, I suppose that I'll get both H's next week. Here is my question:

What my wife should do? She need to stop working once she get the H4 and wait for the EAD or GC (which come first)? If EAD is in process now and the I-140 was approved, can she continue working legally?

Thank you for your help!
Click to expand...

She suppose to apply for I485 for herself (form, fees, medical exams .....etc). She should also apply for her own I485 based EAD to continue work.
Once her H4 is approved, she can not use her J2 based EAD anymore and she should take unpaid vaccation till she receive the other EAD (This is in ideal world, but practically she may continue working with her unexpired J2 EAD till she receive the other EAD supposedly the gap will be less than 6 months between the 2 EADs).
I assume you have visa number current for your category and country for your I485.
 
Thank you mmed. I applied through EB2-NIW and I have visa numbers current (no India, no China). My wife applied for I-485 by herself (as spouse) and she also apply for EAD and AP. Her J2 EAD expires on Jan 2010, so I believe that she'll receive her new EAD before that date (and perhaps her green card!).
Thank you again!
 
mmed said:
She suppose to apply for I485 for herself (form, fees, medical exams .....etc). She should also apply for her own I485 based EAD to continue work.
Once her H4 is approved, she can not use her J2 based EAD anymore and she should take unpaid vaccation till she receive the other EAD (This is in ideal world, but practically she may continue working with her unexpired J2 EAD till she receive the other EAD supposedly the gap will be less than 6 months between the 2 EADs).
Click to expand...

I suspect that the EAD will remain valid since she is eligible for one based on her pending I-485, but in the worst case as you point out 245k relief will cover her. No need to stop working.
 
Technically, a J-2 EAD (category C-5) is valid only as long as the alien is in J-2 status. Once her H-4 is approved, she is (by definition) no longer in J-2 status. Therefore by extension, a C-5 EAD is not valid for her to work with. So keep in mind that, as Canadian writes, she will "technically" be working without employment authorization until she receives her new C-9 category card. But again, as long as the unauthorized employment is under 180 days, she will not be penalized due to 245(k) provisions.
 
Thank you everybody for your helpful comments. Although I didn't know anything about 245(k) you told me this is applicable for this case.
Thanks!
 
jk0274 said:
Technically, a J-2 EAD (category C-5) is valid only as long as the alien is in J-2 status. Once her H-4 is approved, she is (by definition) no longer in J-2 status. Therefore by extension, a C-5 EAD is not valid for her to work with.
Click to expand...

Yes, but if the I-485 was filed prior to the end of J-2 status one could argue that one remained eligible for an EAD, much like a 20-year-old H-4 alien marrying an H-1 holder. It's not an area where I've heard anything definitive one way or another, hence the 245k fallback.
 
dvila said:
Thank you everybody for your helpful comments. Although I didn't know anything about 245(k) you told me this is applicable for this case.
Thanks!
Click to expand...

Do not worry about all that. The best action is not to apply for H4 for her at all, you (or your employer) will save the fees and immediately will be invalidated if she work with any EAD. The pending I485 is much better than the handicapped H4 visa and if any problem happens to your pending GC, the H4 option is still valid for her anytime down the road. Even the H1 is not the best option for you either giving the fact that you are NIW, your I140 already approved and you have stable job. For me I aborted the costy H application after everything was ready to be sent to the USCIS, I worked with my EAD, my wife worked with her J2 EAD for few weeks gap till she got her I485 EAD. I never filled the H4 paper work for her at that time. I understand that many foreigners, including myself, like many paper works, many backups applications, enjoy to have many approvals even if we will never use them.
 
mmed,

I agree with you about H4 for my wife but my employer took care of the H process and they recommend me to do both (H1 for me and H4 for my wife). This was a bad decision considering the advantages and disadvantages of that situation while I was applying for AOS.
The most important issue now is that I don't gonna jeopardize the AOS process for doing something wrong. Considering the advice of TheRealCanadian and jk0274 I'm covered with 245(k) provision, so she can continue with work but if I gonna go with the most conservative approach, it is better to stop working till she get the new EAD or the GC (which come first). This takes no longer than one month, I guess.
Thanks!
 
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