Worked without EAD

nkm-oct23,

of course it is your choice to follow your own interpretation of immigration laws and procedures. It is a free country, after all, so you are free to make your own mistakes.

---

All,

that was not the way INS have seen the issue before, and it is not the way they see it now. So, unless something changes, a person in order to engage in an employment for compensation, must have a valid unexpired EAD (Interim EAD included).

That is why, if you are using EAD for your employment, you should take care of applying for EAD renewal at least 3 months in advance, so you would get Interim EAD to continue employment uninterrupted.

Pending I-797 does not give you ability to engage in an employment for compensation!
 
>>>
I am sorry to point this out, but you are totally confusing different aspects of the law. You are trying to match AOS eligibility requirements with unauthorized employment definition during AOS. It's like comparing apples and peaches - you can get amusing, but absolutely meaningless, results.
>>>

Hi BitterMan,

Actually I have been waiting for your clarification about my claims because I think you are one of the best men in this forum to precisely interpret the law.

But this time I don't agree with you. From I485 adjustee, AOS eligibility should be maintained until we get final approved, right? During the pending of AOS, if we lose eligibility, will adjudicator approve our case? The answer is probably no (if he knows that).

Note that for us, we claim the eligibility before I-485 filing; for the adjudicators, they check the eligibility before the adjudication (checking includes current FP, EVL … ). From their point of view, the eligibility duration spans over the entire periods, not only the time before we file I-485.

As to Green Guy's case, however, strictly speaking, GreenGuy's case is as what Bitterman said. The reason is like this: once the one works without permission, if he falls to the category of unauthorized employment, he is no longer eligible to adjudicate the case.

Let's be back to the AOS working without EAD issue.

The general concept above should be right. But the fact might be another matter.

And I think it is not easy for them to have a meticulous checking on the current status of every application in practice (though currently they intend to do so). So many similar cases largely got approved as long as this does not become an issue. It is how "don't ask don't tell policy" works. However, if this is a bar case and everyone gets serious, then it will be totally under the mercy of the judger.

It is possible that allowing a small gap of AOS working without EAD is a unsaid rule inside the circle of adjudicators (to tolerate the lapse of adjustees in practice). However, it is unbelievable that one can work without any penalty attached to him once he files I485. If so, the law which requires EAD will lose its deterrent base for every adjustee. In fact, my attorney (a big immigration company) strongly urges me to file EAD and not to make any gap.

If I am wrong, please give me a BIA case to prove it.

(Like "AOS/F-1" issue, I disagree Murthy's claim "F-1 invalidated upon I485 filing" with the BIA "matter of Housseinpour" .)

And I believe both cases sit in gray area and controversial. Only debate can make it clear.

Duke
 
Hi Bitterman,

As I read your following posts, I found we are largely in agreement on the same issue: working without EAD will jeopardize I485. On my last post I am comparing apples and peaches :o) . But I believe the post is good to other readers.

For your post to me
>>>
I am sorry to point this out, but you are totally confusing different aspects of the law. You are trying to match AOS eligibility requirements with unauthorized employment definition during AOS. It's like comparing apples and peaches - you can get amusing, but absolutely meaningless, results.
>>>

For above, what I mean is that

The eligibility of AOS depends on the definition of unauthorized employment. There are two definitions in the law book: one is for common case, and the other (the clarification one) for I485. It is confusing.

I think the conclusions we draw are the same: DON"T work without EAD during AOS pending (unless the first waiting period of EAD after filing 485---this is clarified by the I485's definition of unauthorized employment).

Duke
 
Originally posted by nkm-oct23
If you look at I-9, the form used to verify employment eligibility there is a provision that says if a document establishing employment authorization is not available, proof of having applied for such a document is acceptable for 90 days. The actual document needs to be submitted within 90 days. No distinction is made as to what kind of documents this applies to, therefore it is safe to assume that it applies to EVERY kind of document, including EAD.
Click to expand...

Actually this provision applies only for lost, stolen or damaged document, but not for renewal document.


Originally posted by nkm-oct23
I-9 allows you to work (although for 3 months only) just using receipt for EAD. period. It does not matter if the form is for employers or not. It states a requirement and that holds.
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It's true, but only with receipt for lost, stolen or damaged EAD.
 
Duke,

your comments are very flattering, however my private research in the immigration law land is a type of homework that every immigrant has to do. Nothing fancy.

Actually, 62 FR 39417 indicates that:

New Section 245(c)(8) of the Act

Section 375 of the IIRIRA also added a new section 245(c)(8) to the Act, which renders "any alien who was employed while the alien was an unauthorized alien as defined in section 274A(h)(3) [of the Act] or who has otherwise violated the terms of a nonimmigrant visa" ineligible to adjust status pursuant to section 245(a) of the Act. With respect to the employment of an alien at a particular time, section 274A(h)(3) of the Act defines the term "unauthorized alien" as an alien who is not either an alien lawfully admitted for permanent residence or authorized to be so employed under the Act or by the Attorney General.

Except as noted below with regard to immediate relatives and certain special immigrants, the Service interprets new section 245(c)(8) of the Act as rendering an alien ineligible to adjust status to permanent resident under section 245(a) of the Act if she or he at any time engaged in unauthorized employment or violated nonimmigrant status while physically present in the United States. This second interim rule amends 8 CFR 245.1(b) accordingly by adding any alien who has violated the terms of a nonimmigrant visa to the list of persons currently ineligible to adjust status under section 245(a) of the Act. In addition, since the statute does not state that the violation of the terms of a nonimmigrant visa or the unauthorized employment must have occurred during a particular time period, this rule similarly places no time restrictions on when such a violation must have occurred. For this reason, this rule provides that any such violation of the terms of a nonimmigrant visa or unauthorized employment, either before or after the filing of Form I-485, will render an alien ineligible to adjust status under section 245(a) of the Act. Thus, as described below, under new section 245(c)(8) of the Act, an alien seeking employment during the pendency of his or her adjustment application must fully comply with the requirements of section 274A of the Act and 8 CFR part 274a.
Click to expand...

Thus, making eligibility requirements and adjudication requirements equal. And our topic of discussion moot :)

Note, that this document was around for a while (since '97 to be exact).

At the very same time, we have an article from a reputable immigration attorney http://www.usvisanews.com/faq-chemployers.html#chemployers-c. And let me tell you, USVisaNews publishes something that is solid as a rock; no rumors, no hoaxes - just your plain old conservative lawyers.

And in this article, Jose states:

If your H-1B is current- or if it has expired- and your adjustment of status is pending, you are an "adjustee." However, if you search the regulations, you will not find the word. Basically, a person who has filed an I-485 and is in adjustment proceedings is an "adjustee," meaning, in plain English, "legal limbo." The INS has issued contradictory guidance on how the ongoing validity of an H-1B petition is affected by filing for adjustment: one opinion said the filing meant termination of nonimmigrant status; another said it did not. While it is not necessary to perpetuate your H-1B status once your adjustment is pending, many clients choose to do so. Most employers won't pay for this since, technically, it is not necessary.

An "adjustee," then, is in LIMBO. What does this mean? Well, it means you can remain in the U.S., apply for employment authorization, get advance parole for travel purposes, and legally await your final interview. If you did the legal research -- as I did years ago when I was younger, more foolish, but mostly had more TIME -- you will find that once you are an "adjustee," a number of indiscretions may be forgiven. For example, there are cases holding that a person who engages in unauthorized employment while the adjustment is pending -- I suppose because they did not to apply for the Employment Authorization Document (EAD) -- cannot be denied adjustment if such violation occurred AFTER the I-485 was filed. So, this ethereal status offers some vague protections, but none any reasonable person would rely on. The short answer: ALWAYS file for the EAD, and renew 5 months in advance to be extra careful. But be aware that once you use your EAD, you may no longer travel on your H-1B without also obtaining advance parole.

So what happens to a person who was in valid H status when the adjustment was filed, got the EAD, and then let the H expire without renewal? They call me three days before the EAD is expiring telling me they need to renew it. I explain that the Service Centers are taking over 4 months. They freak, yell and scream. They realize that it may be several months before they can again have a valid EAD...what can they do? Well, I wish the answer was clear, but it is not. The regulations throughout stipulate that to work, employment authorization is required. Yet we have that old line of thought -- all of it predating the Immigration Act of 1990, which pretty much changed everything -- which says that if you DID work without the EAD while pending adjustment, the adjustment was still ok...so what do you tell your client? A CONSERVATIVE attorney STILL says: don't work without the EAD. WE are conservative attorneys when it comes to compliance with the letter of the law, but these vague areas are things you as immigrants need to know about, even if our well-intended writing only confuses you...
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Perhaps, what he is referring to, lies in INA 245(k):

(k) 7/ An alien who is eligible to receive an immigrant visa under paragraph (1), (2), or (3) of section 203(b) (or, in the case of an alien who is an immigrant described in section 101(a)(27)(C), under section 203(b)(4)) may adjust status pursuant to subsection (a) and notwithstanding subsection (c)(2), (c)(7), and (c)(8), if--

(1) the alien, on the date of filing an application for adjustment of status, is present in the United States pursuant to a lawful admission;

(2) the alien, subsequent to such lawful admission has not, for an aggregate period exceeding 180 days--

(A) failed to maintain, continuously, a lawful status;

(B) engaged in unauthorized employment; or

(C) otherwise violated the terms and conditions of the alien's admission.
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Well... I don't know. Have been reading those laws for past 4 hours, so can't think straight at this point. Maybe, tomorrow I shall continue my analysis.
 
some comments

BitterMan never disappoints me by explaining the terms.

>>>(from his post)

For example, there are cases holding that a person who engages in unauthorized employment while the adjustment is pending -- I suppose because they did not to apply for the Employment Authorization Document (EAD) -- cannot be denied adjustment if such violation occurred AFTER the I-485 was filed. So, this ethereal status offers some vague protections, but none any reasonable person would rely on.

>>>

my comment:
======================

Exactly.

From the clarification definition of unauthorized employment (see 62 FR 39417), one can keep working on the same position (as he would not have applied I485) even without EAD until he gets approval. How strange it is !!!

In fact, though it is the fact, none of us has the gut to try this way :) .

Note that this new term is consistent with AOS-H1 case, and can be implicitly expanded to other visa categories like F-1, which enjoys the benefit of work-study (RAs and TAs).

Due to many experts' effort, this thread grows a good-quality example for EAD gap issue.

Duke
 
Re: some comments

Duke,

From the clarification definition of unauthorized employment (see 62 FR 39417), one can keep working on the same position (as he would not have applied I485) even without EAD until he gets approval. How strange it is !!!

In fact, though it is the fact, none of us has the gut to try this way :) .
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Nothing strange, really ;) Actually, every single AOS applicant goes through this stage. You file AOS, but continue working on H-1B for some time before switching to EAD (if ever happens)... That is how they position H- and L-visas. No big deal.

There is actually more to it, in regard of Advance Parole. But that is another story.

Note that this new term is consistent with AOS-H1 case, and can be implicitly expanded to other visa categories like F-1, which enjoys the benefit of work-study (RAs and TAs).
Click to expand...

Not necessarily. Although you have cited a case (a BIA case, I presume) which might be stating otherwise, AOS still should terminate any non-immigrant status except for those with "dual intent". F-1 does not bear any dual intent, as far as I remember. In hind sight, non-dual-intent non-immigrant status should be terminated upon filing immigrant petition, I-140 that is. But most of non-dual-intent non-immigrants are prohibited from adjusting their status to of a permanent resident, anyway.
 
lengthy debate i guess but overall what i think

1) You need EAD card to work no ead no work.
2) Is you do't have ead or have ead renewal receipt you cannot work or if can work cannot get paid.
3) If you or your employer chooses to pay you while u do't hav eEAD/iead INS may punish your employer ( thats written rule ) what will happen to you is unforseen thing. So take your chances if you like .
 
Guys wait for a week


Finally my friend's wife talked her issue with her company's HR and they arranged a meeting for her with the company's lawyers.
The meeting is scheduled on saturday 9th.


Let me post the outcome of this meeting on monday
 
The I-9 process on a nutshell

Page 5

RECEIPT RULE: Employees who do not possess the required documentation when employment begins may not submit receipt showing that they have applied fir initial application or for application for extension of expired documents.
 
To EAD or not to EAD

This topic has probably had more threads discussing it than any other topic (except INS inefficiency).

The conclusion we arrived at in the previous discussion was that you CANNOT work without an EAD in HAND. It doesn't matter if you have the receipt for a renewal EAD.

The justification about being under AOS and hence eligible for EAD IS NOT the same thing as actually having the EAD in hand. If that was true then why apply for EAD?

BitterMan was correct about GreenGuy's wife and company being in the wrong. And nkm-oct23 argument about AOS giving you the right to work is totally specious!

For the record EAD's ARE NOT back dated! So working on the renewal receipt is NOT legal!
 
To BitterMan

BitterMan said:
Duke,

your comments are very flattering, however my private research in the immigration law land is a type of homework that every immigrant has to do. Nothing fancy.

Actually, 62 FR 39417 indicates that:



Thus, making eligibility requirements and adjudication requirements equal. And our topic of discussion moot :)

Note, that this document was around for a while (since '97 to be exact).

At the very same time, we have an article from a reputable immigration attorney http://www.usvisanews.com/faq-chemployers.html#chemployers-c. And let me tell you, USVisaNews publishes something that is solid as a rock; no rumors, no hoaxes - just your plain old conservative lawyers.

And in this article, Jose states:



Perhaps, what he is referring to, lies in INA 245(k):



Well... I don't know. Have been reading those laws for past 4 hours, so can't think straight at this point. Maybe, tomorrow I shall continue my analysis.
Click to expand...

Hi Bitterman,

I have been very impressed by your quality of research. I have a couple of questions for you that I'm hoping you could answer for me.

I'm an AOS applicant, and my I-140/AOS is currently pending. I'm maintaining my legal status as an H1 applicant, and have got my visa renewed AFTER obtaining my AOS document, and got admitted as a non-immigrant. However, there are some loopholes in my wife's case, who applied as my dependent.

Here's my wife's immigration history.

Entered on H4: Dec 2003, re-entered Feb 2004
Applied for an got approval for H1 (COS) with new I-94, expiring in 2007, with start date of Oct 1 2004.
Started working (went on payroll on April 4 2005).
Applied for AOS on Sept 29th 2005, while still working.
Got EAD/AP in Dec 2005.
Quit working on H1 end of Dec 2005. Went abroad, got visa stamping for H4 along with me (H1) after AOS was applied.
Re-entered in February 2006 on H4 visa. Has not worked since then.

Now, how does INS view the period from Oct 1 2004 - April 4 2005? She was in-status (based on I-94), but I presume in violation of status (did not go on payroll). But since there was no break in employment after she went on payroll, will this be deemed alright? She did not receive any inquiries on her H1 status, and her H1 was not revoked.

My lawyer's been asking me to withdraw her already filed AOS petition and file a new one on her current status as H4, as soon as my I-140 is approved, but I'm not sure if that's a good course of action.

Could you comment?
 
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