my wife using her EAD question

N

Normann

Registered Users (C)
The question is:

I am on H1B, she is on H4 but she has a university job waiting. As it looks we both got approved for the EAD so she will start right after she'll get her card. I hope in the next two-three weeks. BUT once she starts using her EAD, would I (who is still working while using my H1B) also loose my H1B status? Would she loose her H4 status? I guess she would, but would that also convert my status to EAD, even though I have not used it?

I am wondering because my H1B needs to be extended soon, but if we will be converted to EAD "status" because she starts using it, than of course there is no point in extending my H1B anyways.

Thanks!
 
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Your status will not change if your wife uses her EAD. She will lose her H4 status once she uses her EAD. Go ahead and extend your H1B.
 
In the above situation if the 485 gets denied and the husband files for H1 extension. Can the wife switch back from EAD to H4. Or would she be considered out of status.

Would using EAD be a risk for the wife.
 
I-485 generally doesn't get denied. If such an eventuality arises, the H4 spouse who is on EAD will have to go out of the country and enter on H4. Otherwise s/he will be considered out of status.
 
Hi Sachdev

hi Sachdev,
if i485 gets denied, why should she go out of country to enter on H4. They are going to do H Extension.

-sank
 
Hi Sank,

Since she is losing her H4 status by using EAD, she will not have any status in case the I-485 is denied as her EAD becomes invalid the minute I-485 is denied. However, if the principal applicant maintains his H1B during the AOS stage he will not be out of status even if AOS application is denied,

This is my understanding. It is always better to consult an attorney in real time situations.

Regards,
 
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hi Sachdev,
if she does h4 extension Now , & if 485 gets denied , She can use h4 to stay in USA. While Using EAD, he/She can not loose H1B/H4 status Automatically. as long as they do h1/h4 extension. She need not go outside usa to do Extension.

I am not getting onething clearly whether his h1b is getting Expired or not? or does he think like this "Since he/she is going use to EAD, he thinks that they will loose H1/H4 Status.

If current h1B/h4 is valid, If one gets EAD & use it , they won't loose h1/h4 status. In order to use EAD, they should file the form
I-9.



-sank
 
puneet_gcard:
/***
In the above situation if the 485 gets denied and the husband files for H1 extension. Can the wife switch back from EAD to H4. Or would she be considered out of status.

Would using EAD be a risk for the wife.
****/

She has to file H4 if 485 gets denied if she has not filed h4 extension in Advance.
 
Hi Sank,

I got the following from murthy.com. Hope it clarifies our confusion.

Does the EAD void the H1B?

An H1B nonimmigrant has the option of applying for an EAD. However, if the person then uses the EAD to work for another employer, s/he will not be maintaining the H1B status. Just having, but not using, an EAD does not void the H1B.



Should I save the time left on my H, in case my I-485 is denied?

Really, each case is different. People who are concerned that they may be laid off or, for whatever reason, that their green card processes may fall through generally prefer to keep their H-1 status in order to be able to file an H1B transfer with a new employer if the I-485 is denied. Since AC21 law was passed in Oct. 2000, a person may be able to extend the H1B beyond the 6 years under certain circumstances. For example when the I-140 or I-485 is pending, based on the green card processing having started a year earlier, so that the urgency of trying to conserve time on the H1B is no longer as important as it was before AC21 law. AC21 law may also enable a person to keep the I-485 going even after losing his/her job, based on a similar offer from another employer.

If you plan to take a job on the side or start your own business on the side, then you would be required to obtain the EAD to work legally and you would not be considered to be maintaining H1B status, anyway. However, it may still be possible to extend the H1B under certain, limited circumstances. Also, if you have been holding H-4 status, but now want to work and have obtained an EAD card, it would then not make sense to extend the H-4 because that would be a non-working status. Some companies are, understandably, reluctant to incur the expense of extending the H-1 after the I-485 is pending and the employee has obtained the EAD card to work because it is generally not necessary to extend the H1B to maintain status or to work. In general, I-485 denials are rare but they do occur, especially if the person has any criminal record, failed to maintain status and could be subject to the 3- or 10-year bars, or has a medical condition that could prevent or delay I-485 approval, etc.
 
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