On H1 should apply for EAD or not

M

maverick17

Registered Users (C)
Hi,

I am married to USC and filling for green card through her. I am on H1 but it is not stamped. My question is should I file for EAD along with I-130, I-485.
Is it a possiblity that I can file for Adavance Parole and not file for EAD as I have a valid H1 till 2008.
I will appreciate if you can answer this
Thanks
Rahul
 
Unless you plan on quitting your job, you don't need EAD as long as your H-1B is valid. Also you can travel on your H-1B (although obviously next time you leave the USA you'll have to get the stamp at the embassy), so you don't need AP.
 
maverick17 said:
Thanks for replyng.. but what if I jut apply for AP and not apply for EAD, can that be possible.
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I am in a very similar situation. Also on H1B, but thankfully I do have a stamp in my passport (got it last summer when I went back home for vacation). I was also wondering if I should apply for AP and EAD along with my application. My situation is different in the sense that, since I have a stamp, I wouldn't need the AP, but was thinking about getting an extra job sometime soon, so I could definitely use the EAD. At the institution where I work, we have a center for foreigners that provides legal (and other) advice. I contacted them and was told that, at least in theory, you can't have both; H1B (to travel) and EAD, or H1B (to work) and AP. In my situation, if I got the EAD and accepted some other job, I would void my H1B, so I wouldn't (shouldn't) be able to use it to travel anymore. In your case, I'm afraid, if you use your AP to enter the country, your status might change and "kick you out" of your H1B. As for me, I didn't want to take my chances and decided not to accept that extra job and not to apply for AP/EAD.

That's just my understanding of the issue and by no means I'm an expert, but I thought I'd share this with you. I hope I'm wrong and somebody here will correct me (and the lady at my "center for foreigners").

I hope that helps a little and that everything will work out for you. Sorry if my post is a little chaotic. It's early in the morning and I'm only half way through my coffee... ;)
 
Its easier and cheaper and quicker to get the H-1B stamp than getting AP. Plus AP has all sorts of legal issues involved with it which are best avoided.

Basically, the OP should keep his H-1B valid unless he has a very good reason not to, its in his best interests.
 
dr_lha said:
Its easier and cheaper and quicker to get the H-1B stamp than getting AP. Plus AP has all sorts of legal issues involved with it which are best avoided.

Basically, the OP should keep his H-1B valid unless he has a very good reason not to, its in his best interests.
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Yeah, I agree. That's why I decided to give up the extra income and stay with my cozy H1B.

I'm just curious, though: on the application for the H1B stamp they ask you about spouses or fiancés in the US. Do you think that answering 'yes' to that question can cause any trouble with obtaining the stamp?

Thankfully, when I was applying for mine, I wasn't married yet, so I didn't have that dilemma, but I'm still curious...

All in all, I agree with dr_lha. Is it still possible to make a quick trip to Canada or Mexico to get a stamp there? As far as I know, you can't get it here in the US, right?
 
I'm just curious, though: on the application for the H1B stamp they ask you about spouses or fiancés in the US. Do you think that answering 'yes' to that question can cause any trouble with obtaining the stamp?
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I got an H-1B stamp in my passport no problem, despite being married to a USC. H-1B is dual intent, so you are allowed to have immigration intent. If you answered "yes" to that question for a J-1 or F-1 visa (non dual-intent visas), it would cause you problems.
 
dr_lha said:
I got an H-1B stamp in my passport no problem, despite being married to a USC. H-1B is dual intent, so you are allowed to have immigration intent. If you answered "yes" to that question for a J-1 or F-1 visa (non dual-intent visas), it would cause you problems.
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That's what I thought. Makes sense. Thanks for satisfying my curiosity, dr_lha! :)

maverick17: good luck with whatever you decide!
 
Thanks you all for replying.. but my question still remain the same.
Can I apply for AP and not apply for EAD based on having H1. The thing is right now because of my work schedule I dont want to go for H1 stamping, so wondering if I can stay on my H1 but still can apply for AP.

Thanks U all again
 
maverick17 said:
Thanks you all for replying.. but my question still remain the same.
Can I apply for AP and not apply for EAD based on having H1. The thing is right now because of my work schedule I dont want to go for H1 stamping, so wondering if I can stay on my H1 but still can apply for AP.

Thanks U all again
Click to expand...

Well, as I said above, according to the lady at my International Center, you can't have both. It's either AP + EAD or H1B.

I don't know how it works in practice, but I'd be afraid that I'd lose my H1B status, if I came back to the US using my AP.
 
ttinatl said:
Well, as I said above, according to the lady at my International Center, you can't have both. It's either AP + EAD or H1B.

I don't know how it works in practice, but I'd be afraid that I'd lose my H1B status, if I came back to the US using my AP.
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I agree. AP would cause problems with H-1B. To be in valid H-1B status, you need to have entered the USA on an H-1B visa.

Is there some reason why you can't just get the Visa stamp on your next trip? You'd be much better off doing this than AP. Personally I don't think someone would use AP unless they had any other option.
 
I am not sure how the whole thing works, but here is our experience. We applied for EAD + AP and travelled out of country with H1-B and Valid Visa upto April 2007. We returned in Mid Jan using H1-B. In the mean time , my EAD + AP approved and delivered in Jan 3. We did not have any difficulties at the POE. My understanding is that, what you use when during the POE is the matter, some one did mentioned about this earlier in this group. I am also interested to know the real deal, also want to know if we are in any future trouble. We are currenlty waiting on namecheck clearance for I485 approval.
 
H-1B remains valid throughout the AOS process, so is not invalidated by applying for EAD, AOS or AP.

However, why do you need EAD and AP if you have a valid H-1B? One reason will be if you want to change jobs, then you use your EAD and your H-1B is no longer valid, so you need AP to travel.

If you're not changing jobs and your H-1B remains valid, you can travel on it no problem.

Its the mixture of having AP and no EAD that might cause a weird situation. If you enter on an AP, you not have a legal presence in the USA, you are only paroled into the USA. This means that you cannot use your H-1B to work, its not valid. This is a weird legal situation which could cause issues in future. In my mind the OP has to do one of 2 things:

1. Get the H-1B stamp, which is the cheapest solution and doesn't require waiting for EAD/AP to be processed (3 months) or

2. Get EAD and AP and use those. The benefit is you can change jobs, however when you reenter the USA on AP you are only parolled into the USA, your legal self remains at the border. If you have any legal issues with AOS you are better off being legally present in the USA.

Half way measures will cause troubles, IMHO.
 
Thanks a lot for replying.....Well this is what I am thinking please advise me if this is right or wrong.. As I am on H1(NOT STAMPEd), I am thinking of not to apply for EAD and AP, as I have no plans to travel in near future. That way I can work on H1. If in case I have to travel then I can apply for EAD and AP at that time.....

Please advise!!!!!
 
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