Long leave while on EAD - family emergency - please advice.

[pearl12970]

I am currently waiting for AOS and working on EAD. I am the primary. I have to go to India for a family emergency and I am not sure how long I may have to stay back. I may have to stay beyond the stipulated vacation of 10 days and am not really sure how long before I can return back to US. Could be longer than 8 - 10 weeks.

My spouse ( derivative ) won't be accompanying me and will continue to work on EAD.

There could be 2 situations for me :
1) I can request my employer to let me take unpaid leave for an extended time.
2) Hypothetically in this scenario I may have to resign from work.

If any of the 2 above situations arise, am I considered am out of status ? Are you considered " out of status " if u r not working while on EAD or away from work for an extended period of time ? Are the rules similar to H1 visa ?

I am concerned about my status. Please help me understand where I stand .

 

[jk0274]

Here's where you stand: What you decide to do with your work is not really relevant. The only things you need to be concerned with are 1- having an approved Advance Parole before you leave the country, and 2- returning to the US before the AP expires, and 3- having somebody check your mail for any RFEs that may be sent to you while you are away.

You have been "out of status" since you dropped out of H-1B status. From an immigration standpoint, all I-485 applicants who don't have an underlying immigration status are officially "out of status". But because of a pending I-485, your presence in the US is considered Authorized Stay, which means that even though you are out of status, you are authorized to stay as long as your I-485 remains pending. This is the same situation for all I-485 applicants who let their non-immigrant statuses expire.

The EAD is just a privilege given to those who are in authorized stay. It is optional, and is only for purposes of lawful employment while you wait for your I-485 adjudication. The EAD has nothing to do with your "status" and it does not confer "status" at all. You don't even need to have an EAD if you don't work while waiting for your I-485 to be approved.

In your case, the only thing you need to be concerned about is not abandoning your I-485 application. Whatever you decide to do with your work (unpaid time off, resignation, etc) has no direct bearing on your I-485. Of course, you may need to prove that you have a job offer under the conditions of your original labor certification if USCIS asked, but that doesn't mean you have to be working on EAD. The only thing you really need to be aware of is that you must have an approved Advance Parole document before you leave the US, and you must return to the US before the AP expires. That is all you need to be concerned about.

 

[sandeep_wxyz]

After completing specific family task abroad in 10 weeks, I returned to US on AP.

After 6 weeks of allowed company vacation including unpaid time-off (as company policy), employment was gone.

After 10+ weeks, same US based employer offered me employment under same conditions.

As a side note,

Given that
- employment is gone after 6 weeks (as a company policy), and that
- GC for China and India is taking years together,
It is inhuman on part of USCIS to force individuals to search for new similar jobs from ABROAD , so that one can come back on AP without being bothered at immigration.