Maintain H1B while working on EAD - True?

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LaborBadhi

Registered Users (C)
According to this article, all emplyment pending I-485 persons do need to maintain H1B status too.... I am really un-sure about this..

New Traps for Aliens Filing for a Green Card:

http://www.rreeves.com/articles/immigration_en_10575.php

Gurus - need your input on this...

Right now i am working on EAD and used AC-21. I do have valid H1B with old company valid until Dec 2010 but didn't transferred to current company.

I thought filing AC21 is enough while working on EAD but this news worry's me.
 
I want to see that USCIS memo myself. I wonder why he didn't link to it. I bet that the memo is really referring to people whose nonimmigrant status lapsed before they filed for AOS.
 
LaborBadhi said:
According to this article, all emplyment pending I-485 persons do need to maintain H1B status too.... I am really un-sure about this..

New Traps for Aliens Filing for a Green Card:

http://www.rreeves.com/articles/immigration_en_10575.php

Gurus - need your input on this...

Right now i am working on EAD and used AC-21. I do have valid H1B with old company valid until Dec 2010 but didn't transferred to current company.

I thought filing AC21 is enough while working on EAD but this news worry's me.
Click to expand...
Here is MEMO
http://imminfo.com/resources/unlawful_presence_memo.pdf

Read the below link for more info on the MEMO
http://www.immigration-information..../8122-new-uscis-unlawful-presence-memo-2.html
 
Matthew Oh Attorney Reporting

07/09/2009: "Unlawful Status" for I-485 Applicant Failing to Maintain Nonimmigrant Status in the USCIS Consolidated Memorandum on "Unlawful Presence" Pushes Immigrants to Confusion and Edge

Some employment-based immigrants have read "out of the context" the part of the USCIS recently released consolidated memorandum on unlawful presence that defines I-485 waiters not maintaining a nonimmigrant status as "unlawful status" and who are subject to removal proceeding, pushing themselves into confusion and fears. In fact, this part of the consolidated memorandum is nothing new in that all along it has been the law that the I-485 applicants who fail to maintain a nonimmigrant status and stay and work on EAD are not nonimmigrants and "not in status." Since an alien in "not in status" (unlawful status) can be subject to removal proceedings, there is nothing wrong with that part of the consolidated memorandum. However, these readers missed another part of the consolidated memorandum that states that because of prosecutorial discretion and related rules, such I-485 applicants are considered "in authorized to stay" (lawful stay). The language "in authorized to stay" not only means that the unlawful presence that triggers bar to admission is "tolled" but also means that such aliens will not be prosecuted for the unlawful status inasmuch as they are in a valid I-485 proceeding. Flip side of the coin of this law is that since such alien is not "in status," once I-485 application is denied, they lose the basis of the "in authorized to stay," and the government can initiate the removal proceedings unless the aliens depart from the country voluntarily. For the reasons, some I-485 applicants have strived to maintain a H or L visa status adamantly against the potential denial of I-485 applications, but it is completely different issue from current misunderstanding within the employment-based immigrant community that the government can start removal proceedings simply because their status is unlawful and they can be subjected to a forced removal from the country simply because they decided not to extend their nonimmigrant status pending I-485 applications. People should stop panicking on this issue.
 
I read the memo thoroughly a while ago. I'm not sure the writer from "Reeves and Associates" has. There is nothing new in that memo at all. Yes, it is true that aliens whose non-immigrant statuses expire are deemed "Out of Status" and such aliens are normally subject to removal proceedings. This has always been the case. However, aliens with a pending I-485 are (as mentioned above) have a period of "Authorized Stay". This, as the memo states, is not "Lawful presence" because the presence isn't "lawful" due to expired status, but is nevertheless "authorized" by USCIS pending the adjudication of the I-485. Therefore, an alien with a pending I-485 will not be found deportable when standing trial before an immigration judge due to this "authorized stay", and thus such aliens are almost never arrested or pursued by immigration police. If such aliens were not authorized to be inside the US, the "Advanced Parole" option wouldn't exist. So in short, the memo has absolutely nothing new in it, contrary to what that Reeves fellow is writing.

As for Matthew Oh's explanation: He is basically correct, although as is normally the case with him, his English is a bit too weak to give a clear explanation.
 
Agreed, it's also worth noting IIRC that even if brought before an Immigration Judge, if one's PD is current one can ask for relief, namely that the Adjustment be approved. Back when Atlanta wasn't giving out interviews, I was half-tempted to show up at the ICE office with an expired I-94 to try and get myself before an IJ so he would approve my I-485.
 
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