Urgent help needed --- EAD usage

[Always Hope]

Hi,

I have applied for EB1-OR with concurrent 485 in Feb. 2004. We have received the EAD cards for both me and my husband. I am on H1B now and not planning to use EAD. My husband is on TN now which will expire on Nov. 1st. He can't renew TN any more because of pending 485. We want to apply H1B for him. We really don't want to use EAD since in case my 140 got rejected, he can't work right away. We have been talking to his company's HR to apply H1B for him. But his HR keep saying he can work on EAD until it is expired even if 140/485 got denied and he can even go back to TN after 140/485 denied. We know both are not true. We need official USCIS doc to show to their HR to prove they are wrong. Could some one please offer some link to the official USCIS doc on these two statements? Thanks very much.
(1) EAD will be invalid as soon as 140/485 get denied
(2) TN will not be issued if 485 have been applied and/or denied

 

[ETA-GC]

(1) EAD will be invalid as soon as 140/485 get denied

I think this is the case but I thought that some have said (perhaps incorrectly) that the EAD remains valid until it expires. For what it's worth, on my card (not actually using it as I have H status like yourself) it says that I can use it to work through the valid date.

Is it possible that the real problem is that, should the AOS process be denied and you don't have any other status (like H), then you are no longer allowed to remain in the US (whether or not the EAD is valid). Is it possible that in your case, should the I-140 / I-485 be denied then your husband could switch to H4 status (as a derivative off your H1) but continue to work on the EAD?

I know that the H4 doesn't give you permission to work but does it preclude you from working if you have an EAD?

(It's totally possible that I'm spouting nonsense here).

Also, don't forget the other H vs EAD arguments. With EAD, you might have to renew it multiple times (apparently these will last longer as of July though) and you will need AP to travel. You would also need to make sure that your husband using EAD doesn't affect your H (I don't think it does but it could "confuse" the border people -- they aren't always familiar with the rules).

Also, do you realize that an H visa could take until roughly mid-October to obtain at this point (the 2004 cap was reached in February this year and the new cap opens up in October)? And, mid-October assumes premium processing (at ~$1000) -- could take longer without this.

(2) TN will not be issued if 485 have been applied and/or denied

As far as I know the whole "immigration intent" issue is somewhat of a gray area which is interpreted differently depending on who you are dealing with. Obviously by applying for AOS you've shown immigration intent but it seems like you could argue that you no longer have this intent in applying for the new TN.


Probably not too helpful, but those are some thoughts I had on this.

ETA

 

[NVC]

Hi ..

I guess the only issue with your Husbands company is they dont want to spend time and money in applying for his H1, when they know that he has a valid EAD.
Though using H1 has quiet a few advantages over EAD, dont expect his company to undersatnd that.
Ask your husband to talk to that company and see if he can talk them into applying for his H1 if he is ready to bear all the H1 related expenses..give it a shot maybe it might work.
NVC

 

[ETA-GC]

Here's a possibly out of date excerpt from USCIS TN guidelines (from grasmick.com faq section):

The Service has, traditionally, considered applying for adjustment of status as relevant evidence in determining whether an alien has abandoned the requisite nonimmigrant intent. Section 214(b) of the Act does not, however, require the Service to hold this position as an absolute rule. So long as the alien clearly intends to comply with the requirements of his or her nonimmigrant status, the fact that the alien would like to become a permanent resident, if the law permits this, does not bar the alien's continued holding of a nonimmigrant status.

ETA

 

[Always Hope]

Thanks for the valuable information. This looks like a grey area. We are negociating the option with my husband's company by applying for H1B for my husband on our own expense. Have no idea yet if they will agree or not. Thanks.