Urgent: should I stop working?

E

ead_ques

New Member
My current EAD card will expire on Jan 5, 2004 and I filed the
renewal of my EAD on Nov. 26 and received a reciept from NEB where
I was to told that I need to wait for 80 days. My lawyer told me I cannot work if I cannot receive the new card by Jan 5. Is what he told me right? The following is my info:
1) I got Form I 797A and it says the valid from 01/07/02 to 01/06/05
2) I got H1B visa on 07/15/02 and the visa expired on 10/14/02 (3 months) when I went back to china in July 2002.
3) My I485 was received by NEB on Jan 3 2003.
4) I got my EAD on Jan 6, 2003 and will expire on Jan 5, 2004
5) I got my AP in Mar, 2003 and will expire in Mar, 2004.
6) I used my AP to come back to USA in Nov, 2003.
7) I have been working in the same University since the U filed H1b for me in the end of 2001.

so what should I do now? Looking forward to hearing your answer asap. Thank you so much.
 
If you have not provided EAD information to your employer (I mean did not use EAD), then technically you are still in H1B status. The reason is you are still working with the original employer. So, if your EAD expire that should not be alarming.

Now, your type of case has been discussed many times on this forum. I will see whether anybody responses to this post who was in the same situation.

Will really appreciate any response.
 
Could any persons who have the similar situation provide more
info? I desperately need your input now. Millions of thanks.
 
If you've used your EAD to work here, then I believe that once your current EAD expires, you must be on leave/stop working as you no longer have a valid work permit.

Once your new EAD comes you can start working again. Note that your new EAD's validity does not begin 'backdated' from the previous EAD's expiry date, unfortunately.

If you have not used your EAD (and are still using a valid H1) then you are working on H1 and you can work as long as it is valid, independent of your EAD expiry.

All of this, in my opinion of course.

good luck.

- nik.
 
Originally posted by ead_ques
Could any persons who have the similar situation provide more
info? I desperately need your input now. Millions of thanks.
Click to expand...

You used your AP to re-enter the US, so most likely you are not in H1B status, and have been using your EAD to work. Did you fill out a new I-9 using the EAD as your basis for legally working?

Legaily, you should probbaly stop working on January 6th. Practically speaking, you might be OK if you have no choice and need to keep working - there are memos dating back from 1997 that indicate that an alien entering using AP with a valid H1B petition may work for the original petitioner using the H1B.

I wouldn't use such an old memo for anything other than a desperate case, but it's not like you have any other options. Who's the foolish one who left the EAD extension so late?
 
TheRealCanadian

The question about the validity of the H1 even after using the AP is raised very much because people do not want to go stamping. Stamping has become cumbersome because security reasons. This question is raised very frequently.

Could you please post link to this 1997 memo
 
Here is the link to the memo dated on May 2000 from INS.
http://www.vkblaw.com/news/fivehundredtwentyfive.htm

Let me excerpt from it in the following:
........
2. If an H-1 or L-1 nonimmigrant or H-4 or L-2 dependent family member obtains an EAD based on their application for adjustment of status but does not use it to obtain employment, is the alien still maintaining his/her nonimmigrant status?

Yes. The fact that an H or L nonimmigrant is granted an EAD does not cause the alien to violate his/her nonimmigrant status. There may be legitimate reasons for an H or L nonimmigrant to apply for an EAD on the basis of a pending application for adjustment of status. However, an H-1 or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved I-129 petition and engage in employment for a separate employer.

3. If an H-1 or L-1 nonimmigrant has traveled abroad and was paroled into the United States via advance parole, the alien is accordingly in parole status. Does this interim rule allow him or her to now apply for an extension of nonimmigrant status?

Until the final rule is published, an alien who was an H-1 or L-1 nonimmigrant, but who was paroled pursuant to a grant of advance parole, may apply for an extension of H-1 or L-1 status, if there is a valid and approved petition. If the Service determines the alien's application for an extension of nonimmigrant status, the decision granting such an extension will have the effect of terminating the grant of parole and admitting the alien in the relevant nonimmigrant classification.

4. If an H-1 or L-1 nonimmigrant has traveled abroad and reentered the United States via advance parole, the alien is accordingly in parole status. How does the interim rule affect that alien's employment authorization?

A Service memorandum dated August 5, 1997, stated that an "adjustment applicant's otherwise valid and unexpired nonimmigrant employment authorization ...is not terminated by his or her temporary departure from the United States, if prior to such departure the applicant obtained advance parole in accordance with 8 CFR 245.2(a)(4)(ii)." The Service intends to clarify this issue in the final rule. Until then, if the alien's H-1 or L-1 employment authorization would not have expired, had the alien not left and returned under advance parole, the Service will not consider a paroled adjustment applicant's failure to obtain a separate employment authorization document to mean that the paroled adjustment applicant engaged in unauthorized employment by working for the H-1 or L-1 employer between the date of his or her parole and the date to be specified in the final rule.
...............

According to Q2, I think I still can maintain H1B if I have not changed my job, right? Why do some people think my H1B terminate after I use AP to enter US? Is there any late document overturn the above memo? Please clarify.

Here is the link about the 1999 memo.
http://www.shusterman.com/hl-99regs.html
Looking forward to receiving more comments. Thanks.
 
What did you do?

ead_ques: I read your situation and what did you do?

All:

Does any one know what to be done ...filed for EAD extension and the current EAD expired. Can I go to work?

-Freedom
 
Last edited by a moderator:
You you were working on EAD and it expired then you CAN NOT work untill your new EAD arrives, the other ways you can go about is get I-EAD after 90 days from the RD of your EAD or get an H1 Filled/Transferred and then work on H1.
 
guju:

many thnaks

all:

well i found out I can go get a iterim ead after 90 days ...however there is time lapse btn 90 days and the validity of the current one...so i cant go to work for that period? do we have any work around...? by the way what is this temparory protected status ?
248(i) ?

thanks

freedom
 
ginnu:

i am a novice...have difficult understanding all the memos.simple question is there alternative path...? your help is most apperciated

thanks

freedom
 
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