Is this same for AP?Quote:
Originally Posted by idliman
Once we use the AP( not using EAD and working on H1B) to reenter into US ( Valid H1B, but no stamping), is this status going 'AOS Pending"?
In that case can not downgrade/upgrade?
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Is this same for AP?Quote:
Originally Posted by idliman
Once we use the AP( not using EAD and working on H1B) to reenter into US ( Valid H1B, but no stamping), is this status going 'AOS Pending"?
In that case can not downgrade/upgrade?
Idli how sure you are about this red text?Quote:
Originally Posted by idliman
I believe COS should be possible without leaving country because "Status" is a USCIS thing whereas "Visa" is a Dept of state thing.
One should not need a visa in order to acquire a status.
I was thinking about a scenario where the applicant has applied for AOS and is working on EAD. He is no longer maintaining H1B or a non-immigrant status with the current employer. In that case, he has to go out of country, get a stamp to come back on H1B.Quote:
Originally Posted by qesehmk
Edit: IMO, the applicant has to maintain a valid non-immigrant status in the USA to move from EAD to H1B. I don't think there is any formal rule from USCIS on this issue. I think there is a memo.
Hi Idliman,
I am in the exact scenario, working on EAD/AP, let original H1b with employer who filed for 485 expire. Now with a new employer (who i had joined on EAD) applied for H1 so i could bring my spouse over. So I am wondering if I enter the country on this new H1 will my original 485 application be considered abandoned?
I am 100% sure that in the past one could simply do a COS from AOS pending (with or without EAD) to H1B and vice versa without any problem.Quote:
Originally Posted by idliman
I am not aware if anything substantially has changed. So if anybody has knowledge please do correct me.
p.s. - EAD is work authorization. AOS pending is the name of the status you obtain when your 485 is pending. AOS pending is dual status and a derived status by virtue of your pending 485. AOD pending stays as long as 485 is pending. Meanwhile you can acquire any other status without leaving country.
If you leave country with AP your 485 will remain in good standing. If you have H1, then do use H1 while re-entering US. That gives you dual status.Quote:
Originally Posted by bodhi2000
Your wife will use her H4 (there is no alternative), and she will acquire H4 status. When you apply for her 485 and it is accepted, then her status will automatically change to H4 + AOS pending.
p..s - If you leave country without AP, then your 485 will be abandoned. But that is not a huge problem. You can file 485 again when you are here. It is just costly but you will regain your place in line.
Q, I think the rules for entering on AP and simultaneously maintaining H1B are explained in Michael. D Cronin USCIS memo that was amended.
The following is from that memo. Note that USCIS excluded the question about using EAD for work and then switching back to H1B. I have thought about this, but still not very clear. Even attorneys seem to advice that once you use EAD for work, then you have to get stamped to be back on H1B / L1.
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-I or L-1 nonimmigrant will violate his/her nonimmigrant status if s/he uses the EAD to leave the employer listed on the approved 1-129 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 approves 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.
Lets discuss. If anyone has clear understanding on what happens after you use EAD for work, please share.
My read on Cronin's memo is they do not specify in item 3, if they are only referring to H1 renewal from the employer who filed GC petition or if filing H1 from a different employer is also valid?Quote:
Originally Posted by idliman
Please provide any info on Dual Intent questions during H1 stamping, I am yet to get it stamped
Thanks
Idli - I think USCIS' anti immigrant bias is on full display here. The arguments in the memo are twisted to discourage people from many benefits of AC21.
But I still believe firmly that
1) a parole is nothing but your ability to continue exact same status that you left US in. Whatever that may be.
1.1) You can leave US on AP but use H1 to re-enter and your dual status continues.
1.2) You can leave US on AP and use AP to re-enter and your prior status continues (whatever it was before you left).
2) if you have a valid underlying H1 authorization to work i.e. I-797 (??? getting old now) then you should be able to use it or not use without leaving the country at all!!
2.1) If you use AP to reenter US and have an H1 authorization in place - I am still pretty sure you can do a COS. Because guess what H1 is just an authorization completely separate from your GC!!! And so you can switch between that and any other status - with or without a pending GC application.
3) The EAD is unlimited employment authorization - limited only its duration but valid for any employer. So you can use H1 for employer 1 and use EAD for employer 2/3/4/5/6. All at the same time.
As I said - the USCIS is full of racist pigs that don't want non-white immigration. Trump administration has only increased problems ambiguity and roadblocks.
But I haven't seen anything yet that makes me believe otherwise on either of the three things above.
Spec/Imdeng/Kanmani (if at all you're listening) can you please advise?
Q, I don?t believe that?s a true statement. If you apply for AOS and AP and leave country before AP is approved then AP will be abandoned but not 485. You can comeback on another status like L1, H1. You don?t need to reapply 485. That?s my understanding.Quote:
Originally Posted by qesehmk
Correct, it is not 485 form, it is 131 form which gets abandoned.Quote:
Originally Posted by Transformer
Edit : Idliman corrected me below. 485 will be deemed abandoned.
Ace, what you had stated is not correct. A misunderstanding of this topic can cause serious harm. The topic of Pending I131 and travel is a separate one and the rules have been changed back and forth.Quote:
Originally Posted by AceMan
Leaving the U.S. once an I-485 has been filed is generally considered an abandonment of the application under 8 CFR ?245.2(a)(4) and will result in automatic withdrawal of the pending application UNLESS the applicant(s) are currently in H, K or L status OR Advance Parole has been granted to each traveler. This is correctly captured in our AP Travel Thread. Also the topic of Pending I-131 and its effects on travel.
Here are the sections from INA 8 CFR ?245.2(a)(4).
(4) Effect of departure?(i) General. The effect of a departure from the United States is dependent upon the law under which the applicant is applying for adjustment.
(ii) Under section 245 of the Act. (A) The departure from the United States of an applicant who is under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of the proceeding by reason of the departure. Except as provided in paragraph (a)(4)(ii)(B) and (C) of this section, the departure of an applicant who is not under exclusion, deportation, or removal proceedings shall be deemed an abandonment of the application constituting grounds for termination of any pending application for adjustment of status, unless the applicant was previously granted advance parole by the Service for such absences, and was inspected upon returning to the United States. If the adjustment application of an individual granted advance parole is subsequently denied the individual will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.
(B) The travel outside of the United States by an applicant for adjustment who is not under exclusion, deportation, or removal proceedings shall not be deemed an abandonment of the application if he or she was previously granted advance parole by the Service for such absences, and was inspected and paroled upon returning to the United States. If the adjustment of status application of such individual is subsequently denied, he or she will be treated as an applicant for admission, and subject to the provisions of section 212 and 235 of the Act.
(C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.
(D) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful V status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is admissible as a V nonimmigrant.
Quote:
Originally Posted by Transformer
Quote:
Originally Posted by AceMan
If you leave US without parole then your 485 is abandoned. That's why you need AP. Otherwise what is the point of AP, right?
Correction - So it seems you can leave without AP as long as the primary applicant is still employed with the same employer on same work authorization.
You don?t need AP to come back. You can come back on H1 or L1. If you applied for AP then it will be abandoned for sure but not the 485. What you stated is true for someone who already moved to AOS status by using EAD but for someone in H or L status AP is not needed.Quote:
Originally Posted by qesehmk
Transformer - sorry. AP is needed whenever you have applied for 485 and want to leave US and come back. If you do not have AP 485 is considered abandoned.Quote:
Originally Posted by Transformer
This is straight from USCIS site:
https://www.uscis.gov/green-card/whi...ing-with-uscisQuote:
Generally, if you have a pending Form I-485 and you leave the United States without an advance parole document, you will have abandoned your application.
Q, from what Idliman posted above, it seems that it is not abandoned for someone with H or L status.Quote:
Originally Posted by qesehmk
C) The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-1 or L-1 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien remains eligible for H or L status, is coming to resume employment with the same employer for whom he or she had previously been authorized to work as an H-1 or L-1 nonimmigrant, and, is in possession of a valid H or L visa (if required). The travel outside of the United States by an applicant for adjustment of status who is not under exclusion, deportation, or removal proceeding and who is in lawful H-4 or L-2 status shall not be deemed an abandonment of the application if the spouse or parent of such alien through whom the H-4 or L-2 status was obtained is maintaining H-1 or L-1 status and the alien remains otherwise eligible for H-4 or L-2 status, and, the alien is in possession of a valid H-4 or L-2 visa (if required). The travel outside of the United States by an applicant for adjustment of status, who is not under exclusion, deportation, or removal proceeding and who is in lawful K-3 or K-4 status shall not be deemed an abandonment of the application if, upon returning to this country, the alien is in possession of a valid K-3 or K-4 visa and remains eligible for K-3 or K-4 status.
Thank you. Actually that is correct and certainly new information to me. I don't know when this change was made. But as of now it seems you can leave and come back even without AP as long as you are employed with the same employer in the same work authorization.Quote:
Originally Posted by Transformer
Here is the code of regulations for those interested.
https://ecfr.io/Title-8/Section-245.2
Quote:
Originally Posted by idliman
Thank you very much for correcting this.
As a thank you gesture, please accept my idli offerings in the link below.
https://www.youtube.com/watch?v=xsIbL0zeSE8
Wow. Idli in the morning brings back old memories. Thanks.Quote:
Originally Posted by AceMan
In the above topic, USCIS accepts using AP. It is clearly written in the memo and e-CFR (Official electronic Code of Federal Regulations Site). Also the topic of pending AP application and traveling (right now pending AP will not be cancelled).
The only issue that is not addressed in Black & White either in memos or CFR is the topic of using EAD for work (with & without H1/L1). They have avoided addressing this topic. If you find any references to this either by Law firms or by USCIS, please share.
Hi Aceman,Quote:
Originally Posted by qesehmk
Is this statement true?
"The EAD is unlimited employment authorization - limited only its duration but valid for any employer. So you can use H1 for employer 1 and use EAD for employer 2/3/4/5/6. All at the same time. "
I am in situation please need advice based on above statement.
Right now I am working with Employer A on H1B (still valid 2023) and my wife working on H4 EAD. Oct 2020 we have filed I-485 and received EAD/AP(only prmary application got approved and depending applications ead/ap is still pending.) Now I would like to use my EAD to work for Employer B(he may not support 485j so thought of joining with this employer on EAD before 180 days rule) and wanted to maintain H1B status with Employer A so that my wife can continue with her job on H4 EAD till her 485 based EAD/AP is approved. Are we violating any our immigrant/non immigrant statuses?
My other question is if we dont have any plans to travel outside country and have both valid EAD and H1 ,how USCIS will know which status (work authorization) using for work. I know employer has to fill I-9 but that is just compliance form not going to submit to USCIS unless there is some audit. Also E-verify is to just check/confirm whether mentioned document(H1B or EAD) is valid or not based on USCIS records but they are not updating their systems based employer enquiry about work authorization document with e-verify system.
I would take opinion from @idliman on this.Quote:
Originally Posted by gc2021
USCIS calls this "open-market employment". Any clues for finding an answer to this question are in the updated Cronin memo that was meant to address only AP. Note that at different places different interpretations are given. USCIS had incorporated this memo into their "Field Manual".Quote:
"The EAD is unlimited employment authorization - limited only its duration but valid for any employer. So you can use H1 for employer 1 and use EAD for employer 2/3/4/5/6. All at the same time. "
Here?s the strongest defense for your case.
USCIS made it clear that if you leave the H1B employer, then you violate H1B.Quote:
In the interim rule and initial guidance, the term "open-market employment" was used to mean unrestricted access to employment. Applicants with pending applications for adjustment of status are eligible to apply for an employment authorization document (EAD). With an EAD, an alien has access to unrestricted employment, the "open-market". However, if the applicant is adjusting status under an employment-based preference category that requires an offer of employment in the United States, the fact that an applicant is able to work in the open-market does not alter the applicant?s responsibility to demonstrate an intent to work for the petitioning employer.
Here?s a case against you in the same memo. 2nd or 3rd job is unauthorized per non-immigrant petition.Quote:
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.
Quote:
If the H-1 or L-1 nonimmigrant has violated his/her H or L nonimmigrant classification, including restrictions on periods of stay, change of employer and engaging in unauthorized employment, then s/he cannot be readmitted as an H or L nonimmigrant. Instead, such an alien may be paroled into the United States.
Now if you take pains to go to the consulate and get a H1B stamp, then you come back the H1B as per the memo.
From what I know, this question has not been clearly addressed by USCIS and everyone is left with interpreting what is there. The updated Cronin memo addresses only AP related question and totally avoids this topic (which drove Q crazy). From what I have seen, 9 out of 10 attorneys take the safe option and advise that H1B will cancel if you use EAD for 2nd or 3rd job. This is a grey area. But once you get a H1B stamp, you come back to H1B for sure.Quote:
aliens returning from abroad may only be admitted as an H-1 or L-1 when they have a valid H-1 or L-1 visa (unless visa exempt), remain eligible for H-1 or L-1 classification, and, where there has been a recent change of employer or extension of stay, have evidence of an approved I-129 petition in the form of a notation on the nonimmigrant visa indicating the petition number and the employer?s name, or a notice of action, Form I-797, indicating approval. If they do not meet these criteria, then they use their I-512.
As far as USCIS system is concerned there is only one active status at a time. If you get an EAD and never use it, then you are definitely in H1B status. If you have an EAD and take up a 2nd or 3rd job, the only way USCIS will know about it is via a I-9 form. Whenever a new I-9 is filed, the USCIS reflects that as an active status. So, there lies your hint. But definitely don?t take up additional job, without a valid EAD (or employment authorization) and in the first 180 days.
I have explained that I485 is denied only for extreme cases (fraud, criminal, medical, background check, etc.,). You will not have any issues going to an EAD status. Many people have taken the leap of faith to EAD. As you are still in the 180 day period, I would advise you to stay put for 180 days before you take on "open-market employment".
Also you can go for consultation with attorneys for 30 mins or so. They might charge you $250, but make sure that you ask them which regulation or memo addresses this topic as obviously you can have different interpretations of Cronin memo for your case.
Idly - you are the new Kanmani (I don't know if you know or remember Kanmani. S/he was the best legal mind on this forum).Quote:
Originally Posted by idliman
The language you sight above in red itself so clearly says that the basis for your EAD is your current GC petition (not even the H1. It is another matter that your H1 and GC sponsors are the same. But they don't have to be!!!). Ok? USCIS' concern is that use of EAD should not violate that basis. Got it? But other than that EAD has no restrictions.
So you can take my opinion to bank on this one. If they have issued you an EAD you can use it for multiple jobs as follows:
1) Within 180 days since 485 filing - You must maintain the current H1B employer (whether GC sponsor or NOT!!!!! Whoever that is.)
2) After 180 days since 485 filing - You can use EAD regardless what you do with your GC sponsor.
In either case multiple employments are possible.
p.s. - In fact now that I think a bit more - if under #1 if your current H1B employer is different than your GC sponsor then your can ditch your H1B employer without fear of any repurcussions.
Thank you Idliman and Q for your detail explanation. Definitely this topic is useful for lot of folks who are in this situation. I received below response from my company attorney regarding I-9 and visa status:Quote:
Originally Posted by qesehmk
"USCIS will not know which basis you are using unless they audit the employer's I-9 forms. They are not actively seeking out information about what basis people are using.
As long as you are maintaining your work authorization you should not have a problem. "
Hello,
I have been reading about AOS, pending status, EAD.AP on this forum and other blogs. I am summarizing my understanding of different statuses.I would really appreciate confirmation or denial of my summary;
1) One can apply for I-485 once their final action date (FAD) or filing date (FD) is current.If FD is current, one can submit I-485 only if USCIS is accepting FDs.
2) USCIS issues a receipt number after they accept ones I-485 form.
3)A receipt number from USICIS for I-485 means that one has filed the correct form, documents and fees. USCIS rejects an application (ie no receipt number) if there is improper filing (i.e wrong fees, documents etc.)
4) Once you get a receipt number for I-485, you are in a pending AOS status.
5)You remain in a pending AOS status till USCIS renders a decision on your I485 (i.e when you FAD is current).
6)Once you are in a pending AOS status , you can remain is US till a decision is reached on your I-485.
7)If you maintain non-immigrant status like H1B and have I-485 pending, you are in H1B status as long as you adhere to the rules of H1B.
8)If you have pending AOS and your H1B extension, transfer is denied , you can fall back on your pending AOS status.You don't have to leave US incase of H1B denial.(My biggest fear is leaving US incase of H1B denial etc.I saw how rules wrt to H1B can change frequently.I have a Canadian PR and my main attraction was being able to remain in Canada incase I lose my job.The stress of finding a new job and the possibility of leaving your home was too much for me).
9)If you want to work and travel internationally during pending AOS status, you need an EAD and AP.
10)You can apply for EAD/AP concurrently with I-485 .
11)If you applied for I-485 on time (FD current), you can apply for EAD/AP on a later date even if your FD or FAD is not current.
Thank you for all your help once again!Learned more about US immigration here than on any lawyers blog