Useful Infor EAD vs. H1-B

H

helper007

Registered Users (C)
EAD/AP vs. H1

Getting an EAD and using an EAD are two entirely different things. Using an EAD means working based on that EAD and that means when you join any company, signing I-9 form in which employment eligibility is based on EAD. The person can change from H1 status to EAD status by contacting their HR department and filling I-9 form again based on EAD.

Similarly, getting an AP and using an AP are two entirely different things. Using an AP means going out of US and showing AP to enter the US as a parolee instead of showing the visa to enter the US as a non-immigrant. As parolee can\'t work in US, he/she should get EAD before traveling on AP. Receiving AP is just addition of one more document in your file.

So just receiving EAD/AP does not change the non-immigrant status in any way and he/she is still on H or L status. Thus the person is either in EAD/AP status or in H/L status.

As long as the person maintains the H/L status(H/L status not expired and H1/L1 holders not working for any other employer other than sponsoring employer and H4/L2 holders not working at all), he/she can travel outside US and come back with out the need for advanced parole even after applying for adjustment of status. The person can enter using his/her non-expired H/L visa. The person needs to carry his/her "original" I-485 receipt otherwise serious delay at the airport may be caused. For valid H/L visa holders, there is no need to apply for EAD to continue working after coming back to US. This rule is effective July 1, 1999.

If you are not planning to travel, or work part time for another employer, then there is no reason to apply for an EAD. On the other hand, there is no harm in applying for advance parole and an EAD and there is no reason to try to maintain nonimmigrant status after filing for adjustment of status, unless of course 6 years limit on H/L visa is about to be reached and it that the person has no option other than to work with EAD/AP.

If you opt for EAD/AP, Spouse(and children, if any) acquired after using AP can\'t join on H4. Can\'t resume H/L status after I-485 denial, if any. But you can work for more than one employer, and spouse can work. So it is up to you to decide whether to remain in non-immigrant status or to be in EAD/AP status.

In general, if the person is married, he/she may want to apply for EAD for both of them so that spouse can start working and he/she can also part-time work for other employer, if he/she wishes. If the person is single, he/she may want to maintain H/L status so that he/she can bring his/her spouse on H4 if he/she gets married before adjustment of status application is approved.

Some H-1B professionals use EAD(and terminate H1B) on purpose to save H-1B time so that if something happens with the current employer, they be able to pick up the remaining period of the 6-year H-1B limit through another H-1B approval with the new employer. But that H1 approval would be new H1B and not transfer of H1B and hence subject to annual H1B visa.
 
No Title

That was useful info, 007. I am going to be in that position as presently I am on L1A visa and my employer is planning to trf me back to India. My AOS filed on 04/13 and ND is 05/22. I am planning to leave my wife and kid in US and she is going to work on her EAD which we are expecting by July end. I will be travelling by Aug first week and planning to come back on L1 visa once the AOS approval is through. We have not applied for AP as I have my L1 visa valid till the year 2003. So, as per your statement, I cant come back on L1 visa as my wife is going to use the EAD??? So, what\'s the alternative? What shall I do? Pls advise as per the INS regulations.
 
No Title

Hi Helper,

That was useful. But, what if the H4 visa is valid but the Visa stamp
has expired. Is it OK to go to the Consulate for a new Visa stamp?
 
No Title

some more info - you can use AP while on H1 to travel:
INS Permits Use of Advance Parole, Continuation of Work in H, L Status
May 18, 2000 -- INS on May 16, 2000 issued a field memorandum that reversed course from an earlier memorandum, and states that until a final rule is published, individuals who enter on advance parole and continue working on the basis of their H-1 or L-1 status will not be considered engaging in unauthorized employment. The memo states that this policy will be in force until a final rule on advance parole is published and takes effect, intimating that the policy stated in the March 14 memorandum could be reinstated as a part of the final rule. An interim rule was published on June 1, 1999 that permitted H-1 and L-1 nonimmigrants to travel without obtaining advance parole.

Typically, when individuals have adjustment of status applications on file to obtain permanent residence, they are not permitted to travel without parole. In 1997, INS stated that adjustment applicants in H-1 and L-1 status need not obtain separate employment authorization in addition to that which they already had pursuant to their nonimmigrant statuses. Individuals could thereby depart the United States, return on advance parole, and resume work pursuant to nonimmigrant status, assuming it is still valid. The June 1999 interim rule permitted individuals in H-1 and L-1 status to travel without advance parole, though many individuals have continued to use it. The March 14 memo marked a reversal of the 1997 policy, and would have required adjustment applicants to obtain separate employment authorization documents in order to work. The May 16 memo, however, reverses this, at least until a final rule is published, which is expected later this year.

Until the final rule is issued, assuming that an individual\'s H-1 or L-1 status has not expired, a nonimmigrant may travel and return using advance parole and continue to work pursuant to H-1 or L-1 classification. The memo states that "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." The implication is that the final rule will, at some point, require that an employment authorization document be obtained if an individual re-entering on advance parole plans to work.

If you have any questions about this policy, please contact the legal professional you usually work with at Fragomen, Del Rey, Bernsen, & Loewy, P.C.
 
No Title

Hi helper,
Lets say you get EAD from company A (currently working here), and then change the I-9 form to EAD; so H1-B no longer valid. Then, if you get laid off from company A after 180 day rule, can you use the "same" EAD to join another company B? (if so, what happens if the EAD expires after 1 year...Can you renew with company B, or EAD independent of which company you work for?)
  Can company A invalidate EAD after 180 day rule is satisfied?
Pl. let me know. Thanks.
 
You must log in or register to reply here.
Top