What if AOS is denied?

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ventzi75

Registered Users (C)
Came on F1 status in the US. Changed F1 status to H1B (not travelled outside of US since then). My latest entry into the US was under F1 status (I-94 is with F1-D/S). Married to USC. About to file I-130,I-485,I-765,I-131 to adjust to permanent resident status. The question is what happens if AOS (I-485) is denied? Still able to stay and work under the H1B status until it expires or will be out of status immediately after the denial? Does it make a difference for what reason the case is denied? Does it make a difference if the advanced parole (I-131) was used to leave and re-enter the US during the waiting period, i.e. does that mean that after entering on advanced parole the H1B status is jeopardized? I don't want to risk an H1B visa interview outside of the US regardless of the fact that H1B is a dual intention visa.
 
Your H1 will be automatically voided if you use EAD. Otherwise you can keep working under H1 even if AOS is pending as long as your visa permits. The only condition is not to use the EAD (it will iliminate automaticali H1). Many guys will probably say that once you file for AOS you immediately lose your present status. I would disagree with that. Because I personally worked under my visa until it expired (while AOS was already pending)- consultation with several sources - one and the same answer.
I am not sure though if after GCdenial, H1 is denied as well. However you are an immigarnt under family-based case and it shouldn't affect H1 which is issued for employment purposes.
Might be wrong though, guys, any suggestions?!
 
H1B and GC are two separate processes. Your H1 will stay regardless of the outcome of I-485. Even if your 485 was employment based and denied, the H1B will still be valid. The H1 does not expire until the date on I94 or if your employment is terminated. You can voluntarily surrender it once you get your EAD but who does it?

I have a co worker and she has her EAD, travels in and out of country on Advance Parole and works as H1B worker as far as HR is concerned.
 
that is interesting. So far, i was under the assumption that either if you use EAD for employment or use AP to enter US, your H1B status will be gone. (irrespective of what your HR considers for tax processing)
 
EricNeesGC said:
H1B and GC are two separate processes. Your H1 will stay regardless of the outcome of I-485. Even if your 485 was employment based and denied, the H1B will still be valid. The H1 does not expire until the date on I94 or if your employment is terminated. You can voluntarily surrender it once you get your EAD but who does it?

I have a co worker and she has her EAD, travels in and out of country on Advance Parole and works as H1B worker as far as HR is concerned.
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So it means you can get EAD but you can continue working on H1-B till it expires? I was thinking that once you get EAD even if you want to work on H1, you can not and have to use EAD :confused:
 
You have a choice either or. The fact is that the first time he decides to use his EAD, H1 will be automatically voided and he looses the H1 status. As long as he doesnt use EAD he's fine with H1 until its expiration date.
Usage of AP shouldnt affect H1, 'cause it's a document issued for travel purposes,not for employment eligibility.
 
If somebody is working in US on work visa and has filed AOS (marriage based). Can he still get new work visa (in his country) while his AOS is pending??
 
I dont think you can get a visa with pending AOS. The first condition to obtain nonimmigrant visa is to show lack of immigration intention. SInse AOS is exactly iimigarting, you can try but you'll be denied I guess. Both are self ezxclusive - it's either ... or... here.
But you can still work under previously issued visa when AOS is pending as long as the visa is valid and u dont use EAD.
 
Thanks for replying so quickly! I find this information very useful. I decided not to apply for H1B visa after the AOS is pending and I'll use the advanced parole for travelling. Since H1B status gives me the right to work I won't apply for an EAD at all because it might be hard to prove to USCIS that I haven't used that EAD once it's issued. Do you think that my latest I-94 that's still with F1 instead of H1 status can make any problems? I am not sure but I think they don't give you new I-94 when entering on advanced parole, wright?
 
no problem for that as long as you have a valid H1 or AOS pending, especially if on I-94 is written valid until - the date of your status (not only visa)
 
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