I-94 expiration and INS memo

G

gcard2002

Registered Users (C)
Guys,
This needs clarification from a very good expert. This is an issue that effects everyone. Everyone welcome to give their input, though a really sound advise is appreciated. Lately there was an INS memo on I-94 expiration. Also, Sheela Murthy posted this today at
http://www.murthy.com/bulletin.html#1

My question is: If someone filed I-485 already and has EAD, does he still need to extend his H1 (to get I-94 extension automatically) if the current H1 & I-94 are going to expire in few months? Please advice.
 
I share your concerns here and in fact have been trying to dig up more on this.
Here's a quote from a message sent to me from my lawyer:

To respond to your concerns, your status is that of a pending adjustment of status applicant. It sounds odd simply because INS has not given that status a formal name; rather, through a collection of regulations and policy memoranda, the INS has recognized that individuals whose applications for adjustment of status are pending are entitled to live, work, and travel in and out of the U.S., and do not accrue unlawful presence while their applications are pending. Accordingly, once your AOS is filed, it is not necessary for you to maintain your nonimmigrant status (e.g., H-1B, H4, etc.), though you may do so.

I assume that the part of the statement about work and travel implies "if AP and EAD have been obtained"

From what I have been able to uncover myself.

1. I-485 applicant can stay in the US and not accrue unlawful presence, as deemed to be present in the U.S.
pursuant to a period of stay authorized by the Attorney General(http://www.lianglaw.com/INS/law-data/HQADN70.21.1.24-P.htm) This one is pretty old, but I've been told that the new ones look similarly.

2. Although I-485 keeps you in status, it doesn't undo all previous unlawful presence or employment (if any ) - so - ironically - AOS applicant can be deported based on that. Until recently it has been never done - especially if filed under 245(i), but several weeks ago INS seemed to try to use it to deport people that showed up for Special Registration. That varied from office to office and most of them have been released... but anyway, this issue is very tricky.

3. Filing I-485 declares you immigration intention and therfore voids any non-immigrant status you had. This excludesH1-B/L holders who may choose to maintain their non-immigrant status, although this is not necessary. This link discusses issues related to that ( http://www.shusterman.com/hl-99regs.html ). Overall you would only maintain non-immigrant status if you're afraid that I-485 will be denied - it doen't seem to matter otherwise.

4. The expired I-94 seems to be of no consequence for your current status, with the exception that it serves as proof that your I-485 was filed when in lawful status - see 2.

5. Unless H1-B/L is maintained, EAD is required to work, AP to travel. AP holders may not be admited back to the US if certain unlawful presence been acrued ( see INS memo http://www.ins.gov/graphics/publicaffairs/advisories/02.11insissu.htm )

6. Important : you can either work/travel under H1-B/L or EAD/AP, but not at the same time. In fact, the moment you use either AP or EAD, H1-B status is deemed void and only EAD/AP can be used form that moment on.


This is about it...
In your specific case, when you said that you "had" EAD... has it been used? If so, no, you can't go back to H1-B( and I don't see why you would anyway ). If it hasn't been used, you may keep maintaining your H1-B status.
 
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what about H4 who has used EAD

If the H1B has not used EAD while adjusting the status, but an H4 has used the EAD while adjusting, Does the H4 holding spouse need to renew his/her EAD to have a valid status?
 
EAD has nothing to do with maintaining status. It only gives employment authorization. Once H4 used EAD, they have lost their H4 status, and are not considered "an adjustee". They are in status until a decision on I-485 is made, however they need EAD to work
 
I-94 expired

Hi,
I filed for my I-485 in Nov-2001. My H1 is valid till 2003 June. My passport and expired this week. I just renewed my passport. Do i need to renew my I-94. My lawyer is out of the office this week. I read couple of articles saying that my status is legal because my 485 is filed. But i did not apply for EAD. Please let me know if i need to travel outside the country and comeback for my I-94.

Thanks
GC
 
My understanding is that:
1. I-485 will keep you in status regarding of whether you hold H1-B or not. It will not allow you to travel or work though - that can be done either through EAD/AP or H1-B.
2. After you entered the country, your H1-B stamp is of little significance. You status in the US is based on whatever I-94 says. Until your H1-B based I-94 expires you're have dual H1-B/AOS status. After that you're just an adjustee, unless you renew your H1-B, which will again give you dual status.
3. As noted, in any event you're in status defined by AOS, but the question remains whether you still have H1-B status after your passport expired. I believe the answer is on your I-94 - your H1-B status expiration date is on it.
4. You don't have to leave the country to remain in AOS status, but you may choose to renew your H1-B. To do that you will first need to file for revalidation. The approval will come with new I-94 attached to it. If you want to travel as H1-B holder, you will have to either leave the country and apply for a stamp at a consulate or send for re-stamping to Visa Office of DOS in St.Louis. Your lawyer must know all the details.

Again, you don't have to leave the country and you don't need to renew your H1-B only because your passport expired and even after your I-94 expired you are still in status as an adjustee ( although you will need EAD to work and AP to travel )

I suggest you talk to your lawyer so that you can decide on whether you will continue maintaining H1-B status or use EAD/AP instead when your current H1-B expires.
 
Thanks for your quick reply

Hi,
My H1 is valid till june 20 2003. Do i need to apply for renewal now or after H1 expires. I don't know what happens to my old visa if i renew my passport. Do they give new passport with old one attached to it?. Is it ok to file my H1 now because my I-94 is expired. Please help me.

Thanks for all your help.

TestGC
 
So your I-94 expired, but H1-B didn't? That's a little unusual - how did that happen? Why didn't they issue you a I-94 for the duration of your stamp?
If this is indeed the case, then you'll need to talk to a lawyer - I don't really know how things work in this case. You are still in status no matter what, however you're not eligible to work under H1-B if your I-94 expired. You can get EAD though.
As far as passport expiration - it really depends on your country's policy of passport issurance. In most countries they confiscate old passports when issuing renewals, however some will allow you to keep the old copy if there's a need for that. I think you can then re-stamp your visa in the new passport based on the old open and approval notice.
It appears that you really need to dicsuss this with your lawyer - I'm afaid I've never been in a situation like this.
Also you can try asking your question again at http://www.immigration-information.com/ - the lawyer guy there is very helpful.
Good luck
 
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