Spouse's EAD Validity

A

arunjyothireddye

New Member
I am employed and my husband is not( Currently I am on H1 and my husband on H4). So effectively he gets my priority date. My priority date went current based on my husband's country of birth. For those who are wondering, it's called cross-chargeability.

I have I485 AOS pending, and my husband has EAD/AP and AOS pending (My employer's lawyers said EAD/AP was not necessary for me since I already have a valid H1). Obviously my husband's EAD/AP will come in sooner than our Green Cards. However, I have a new job offer which I would like to accept. I understand that I can change employers if my I485 is pending since more than 180 days, but I would like change jobs sooner than that. Assuming my new employer is willing to transfer my H1, and if I wait till my husband receives his EAD, will the EAD still be valid while my I485 is effectively revoked?
I am willing to wait and refile a new I140 with the new employer. Will my priority date be the same?

Thankyou !!
 
To benefit from AC21 portability, the I-140 must be approved (it doesn't matter how long ago it was approved) and the I-485 must be pending for at least 180 days. Otherwise the former employer would have the power to revoke your I-140 (and by extension your I-485 and the derivative I-485).

However, such revocation is not automatic; the employer must send a request to USCIS to revoke the I-140. Many don't bother to do that.

Also, there was a ruling saying that I-485 revocation does not automatically invalidate the EAD. The EAD remains valid until its expiration date unless USCIS sends a notice revoking the EAD. However, since that ruling, it has been common for them to send that EAD revocation at the same time as the I-485 revocation/denial.

When you file the I-140 with the new employer, you can only port the older priority date if the prior I-140 is approved and unrevoked. That's why it's important to wait out the 180 days for AC21 protection, because if the old I-140 is revoked due to changing jobs before the 180 days, you'll be stuck with the later priority date of the new I-140.
 
Thankyou @Jackolantern.
So what you are saying is, assuming my current employer does not revoke my already approved I140, my husband's EAD will be valid if USCIS does not revoke it, even if I485 gets revoked, correct ?
 
Correct, but if the I-485 is revoked you should expect the EAD revocation to come at the same time or very soon after.
 
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