validity of first EAD in case of 2nd 485 filing

G

gc_ka_wait

Registered Users (C)
Hi,

First of all hats off to moderates. Great forum.

Here is my story:

I currently have employment based 485 pending in EB3 India Category, I am working using EAD. My wife is also working on H1 (She does not have 485 pending/ EAD since we got married after I filed 485 in 2007 when it was current).


She recently started her EB1 petition and we are thinking to file 485 for me as well since EB1 is current and EB3 moves only one week per month at Max (my PD is Dec 2002 BTW).

I know that I can not have two 485 and I will have to withdraw my earlier 485. My question is what will happen to my current EAD ? will that be valid ? can i still work ? what is my legal status in US ? will i have to switch to H4 and wait for new EAD (thru EB1 485 ) to come before i can start working again ? Also is it even worth to go thru this effort considering my EB3 PD is not that far.

Sorry for asking too many questions.

Thanks for help.
 
You can have two I-485s pending simultaneously. They may ask you to withdraw one when they're about to approve the other, but there is no need to withdraw the first one at this time. You can keep both going and get the green card with whichever one progresses to completion first.

As TheRealCanadian said, instead of filing a new I-485 and having two pending I-485s you can use interfiling to connect your old I-485 to your wife's I-140. But then you woud lose the "insurance" of having 2 I-485s and being able to fall back on one if something goes wrong. In particular, you have already cleared the 180 days for AC21, so you have that protection for your own I-485 if your employer terminates your job, whereas your wife would need to both have the new I-140 approved and wait 180 days after filing the I-485 in order get AC21 protection for herself and you.
 
Thanks guys.

As you rightly pointed, Having wait for all this time, I would rather play it safe and have 2 485 going. my follow up question is for EAD validity, Between when USCIS picks up my new 485 for processing, sends me RFE to decide which one i want to proceed with and final approval, can I still use my current EAD for working or i will need to interrupt my employment and wait until my new EAD comes.
 
Thanks to an interpretation of the law that AILA pointed out a few years ago (an interpretation which USCIS has accepted), EADs are valid until the expiration date even if the I-485 is withdrawn or denied, unless USCIS explicitly revokes the EAD in writing.

I've never heard of them revoking an EAD in the interim between one I-485 being withdrawn due to multiple simultaneous AOS and approval of the other I-485. And even if they did that, section 245(k) of the INA forgives EB1/EB2/EB3(and religious EB4) AOS applicants for up to 180 days of status violation.
 
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