Using EAD instead of H1 or H4

[RMS_V13]

Hi All, Sorry for posting this here, in need of a quick answer. Will remove this post later today. Thanks!

My husband has an EAD since March '12 and has a valid H1 B I 1-94 until Sep 2013 and currently on the 9th year of H1 B. Never had H1 B stamping since 2007. I as his dependent have EAD as well as a valid H4.

He needs to go to Canada for the next 1 year (Mon-Thurs).

1. Is there any advantage of getting a H1 B Stamp over using his EAD/AP to return?
2. Is it against GC rules where you travel overseas so frequently, but company and pay stubs are American and taxes paid Only in the US?

Thanks guys~

[vizcard]

Hi All, Sorry for posting this here, in need of a quick answer. Will remove this post later today. Thanks!

My husband has an EAD since March '12 and has a valid H1 B I 1-94 until Sep 2013 and currently on the 9th year of H1 B. Never had H1 B stamping since 2007. I as his dependent have EAD as well as a valid H4.

He needs to go to Canada for the next 1 year (Mon-Thurs).

1. Is there any advantage of getting a H1 B Stamp over using his EAD/AP to return?
2. Is it against GC rules where you travel overseas so frequently, but company and pay stubs are American and taxes paid Only in the US?

Thanks guys~

1. There is no meaningful benefit for using H1B stamp vs EAD/AP especially for Canada. Typically with AP you have to go for secondary screening but thats never an issue except for the extra time it takes. That being said going and coming from Canada is super easy.
2. No GC rules to travel - especially business travel - as long as he is still a US firm employee. At the very worst case, they might issue a RFE to ask why you were traveling (i.e. are you a resident of Canada?) which should be pretty easy to respond to.

Absolutely no issues with your situation.

PS: I don't know about your husband's company, but mine usually taxes me based on where income is "earned" i.e. if the work is in the UK, I get taxed as a UK citizen and then get credited on my US returns. I also get taxed in the US state I work in when I travel. So if I work 2 months in Illinois, I pay Illinois taxes and get a credit for that on my NJ taxes. Ofcourse, this may be unique to my company so don't take it as gospel.

[kumar19]

got EAD. can work on W9?
I am on H1B. I and my wife got EAD and so far didn't use it. My wife got a good job offer and they want her to fill W9 form. we are aware that once she starts working on EAD, her H4 status expires. Any other concerns/things we need to be aware/cautious of, before signing W9? Please suggest.

I know this is not the correct place and will move as soon as I get some suggestions/info. Sorry if this caused any inconvenience.

[vizcard]

got EAD. can work on W9?
I am on H1B. I and my wife got EAD and so far didn't use it. My wife got a good job offer and they want her to fill W9 form. we are aware that once she starts working on EAD, her H4 status expires. Any other concerns/things we need to be aware/cautious of, before signing W9? Please suggest.

I know this is not the correct place and will move as soon as I get some suggestions/info. Sorry if this caused any inconvenience.

No problems whatsoever. Wish your wife good luck in her new job.

PS: I think you mean I-9 right?

[qesehmk]

RMS - per my lawyer there was not much difference. We recently discussed this extensively and Spec had provided very good explanation of AOS. You may want to check that.

As far as taxation is concerned, if your husband is travelling for work - IMHO taxation should be as per his home location.

Hi All, Sorry for posting this here, in need of a quick answer. Will remove this post later today. Thanks!

My husband has an EAD since March '12 and has a valid H1 B I 1-94 until Sep 2013 and currently on the 9th year of H1 B. Never had H1 B stamping since 2007. I as his dependent have EAD as well as a valid H4.

He needs to go to Canada for the next 1 year (Mon-Thurs).

1. Is there any advantage of getting a H1 B Stamp over using his EAD/AP to return?
2. Is it against GC rules where you travel overseas so frequently, but company and pay stubs are American and taxes paid Only in the US?

Thanks guys~

got EAD. can work on W9?
I am on H1B. I and my wife got EAD and so far didn't use it. My wife got a good job offer and they want her to fill W9 form. we are aware that once she starts working on EAD, her H4 status expires. Any other concerns/things we need to be aware/cautious of, before signing W9? Please suggest.

I know this is not the correct place and will move as soon as I get some suggestions/info. Sorry if this caused any inconvenience.

I don't see why using EAD will invalidate her H4 status. I think she will have dual status. H4/AOS pending.

[Spectator]

I don't see why using EAD will invalidate her H4 status. I think she will have dual status. H4/AOS pending.

Q,

To maintain status (for any non-immigrant visa classification), the person must abide by the conditions of their visa classification.

A person in H4 status is specifically prohibited from working.

As soon as a person in H4 status works, they have broken the conditions of H4 status and become Out Of Status. They would become an AOS Pending applicant by virtue of the pending I-485.

If they subsequently stopped working and gained a new admission using a valid H4 visa, they would return to H4 status again (providing the H1B is also maintaining status of course). As soon as they started working again, they would lose the status again (rinse and repeat).

[qesehmk]

Spec

Unless you sight a government document saying so - I am fairly certain that H4 and EAD are two different things. Just like an F1 can use EAD and still be on F1, same with H4.

I dont think it does anything to H4.

Q,

To maintain status (for any non-immigrant visa classification), the person must abide by the conditions of their visa classification.

A person in H4 status is specifically prohibited from working.

As soon as a person in H4 status works, they have broken the conditions of H4 status and become Out Of Status. They would become an AOS Pending applicant by virtue of the pending I-485.

If they subsequently stopped working and gained a new admission using a valid H4 visa, they would return to H4 status again (providing the H1B is also maintaining status of course). As soon as they started working again, they would lose the status again (rinse and repeat).

[Spectator]

Hi All, Sorry for posting this here, in need of a quick answer. Will remove this post later today. Thanks!

My husband has an EAD since March '12 and has a valid H1 B I 1-94 until Sep 2013 and currently on the 9th year of H1 B. Never had H1 B stamping since 2007. I as his dependent have EAD as well as a valid H4.

He needs to go to Canada for the next 1 year (Mon-Thurs).

1. Is there any advantage of getting a H1 B Stamp over using his EAD/AP to return?
2. Is it against GC rules where you travel overseas so frequently, but company and pay stubs are American and taxes paid Only in the US?

Thanks guys~

Like most Countries, if a person spends more thsn 183 days in Canada, they are deemed Resident For Tax Purposes.

However, I suspect that under the Canada-USA Tax Treaty (which I know nothing about) he might be able to be "Deemed Non Resident" due to being considered a resident of another country under the terms of a tax treaty that Canada has with another country.

Given he will pass the 183 day threshold, I would certainly be asking the Employer about this.

There can also be Canadian tax implication to the Employer.

These articles may be of interest Article 1 Article 2 Article 3

[Spectator]

Spec

Unless you sight a government document saying so - I am fairly certain that H4 and EAD are two different things. Just like an F1 can use EAD and still be on F1, same with H4.

I dont think it does anything to H4.

Q,

If we take the example of L-2, where the spouse can work with EAD, the INA 214(2)(E) states:

(E) In the case of an alien spouse admitted under section 101(a)(15)(L) , who is accompanying or following to join a principal alien admitted under such section, the Attorney General shall authorize the alien spouse to engage in employment in the United States and provide the spouse with an `employment authorized' endorsement or other appropriate work permit.

There is no corresponding paragraph related to H-4.

8CFR 214.2(h)(9)(4) is even less ambiguous (actually the Roman numerals, but they get converted to **) :

(4) Spouse and dependents .

The spouse and unmarried minor children of the beneficiary are entitled to H nonimmigrant classification, subject to the same period of admission and limitations as the beneficiary, if they are accompanying or following to join the beneficiary in the United States. Neither the spouse nor a child of the beneficiary may accept employment unless he or she is the beneficiary of an approved petition filed in his or her behalf and has been granted a nonimmigrant classification authorizing his or her employment.

Working and maintaining H-4 status are mutually exclusive.

The EAD is issued by virtue of having a pending I-485 application. When it is used, the person is using it as an AOS Pending applicant.


The F-1 comparison is not correct. The law and regulations lay out specific circumstances where work is allowed under F-1 status (and an EAD issued as necessary), from less than 20 hours on campus all the way up to OPT. Thus they would not be violating F-1 status by accepting authorized employment.

[qesehmk]

Spec the L2 example is not useful since it talks about entitlement.

What we need to establish is "prohibition".

The text you produced is debatable whether it prohibits since i think the intention of the law seems to say they are not "entitled to" EAD by virtue of H4. But it does leave the door open if there is another way (ie. approved non-immigrant classification e.g. F1.). So the question is - whether that same condition applies to EAD obtained through another classificaton. I think the law(CFR) actually seems restrictive than it is meant to be. And CFR as you know is not exactly the law itself. So USCIS that gave H4 and then allowed a person to have EAD under pending 485 - wouldn't self negate and cancel H4.

But as I said -different people will have different interpretation and I am quite confident that if one were to take USCIS to court over this - there is a case to be made that H4 shouldn't be cancelled.

Q,

If we take the example of L-2, where the spouse can work with EAD, the INA 214(2)(E) states:



There is no corresponding paragraph related to H-4.

8CFR 214.2(h)(9)(4) is even less ambiguous (actually the Roman numerals, but they get converted to **) :



Working and maintaining H-4 status are mutually exclusive.

The EAD is issued by virtue of having a pending I-485 application. When it is used, the person is using it as an AOS Pending applicant.


The F-1 comparison is not correct. The law and regulations lay out specific circumstances where work is allowed under F-1 status (and an EAD issued as necessary), from less than 20 hours on campus all the way up to OPT. Thus they would not be violating F-1 status by accepting authorized employment.

[kumar19]

Thank you for the response Vizcard. I meant W9 only. Employer sent W-9 form along with offer letter and other documentation asked us to fill and sign it before the start date. Thats why I wanted to check if there is an issue/concern with fill and sign W-9 while our 485 is pending.

[Kanmani]

Spec the L2 example is not useful since it talks about entitlement.

What we need to establish is "prohibition".

The text you produced is debatable whether it prohibits since i think the intention of the law seems to say they are not "entitled to" EAD by virtue of H4. But it does leave the door open if there is another way (ie. approved non-immigrant classification e.g. F1.). So the question is - whether that same condition applies to EAD obtained through another classificaton. I think the law(CFR) actually seems restrictive than it is meant to be. And CFR as you know is not exactly the law itself. So USCIS that gave H4 and then allowed a person to have EAD under pending 485 - wouldn't self negate and cancel H4.

But as I said -different people will have different interpretation and I am quite confident that if one were to take USCIS to court over this - there is a case to be made that H4 shouldn't be cancelled.

Q,
An alien is not allowed to switch between any two status without the approval of the authority, so nobody can reinstate the prior status automatically without obtaining the approval of the USCIS.

When a H4 dependent starts working on EAD, he/she loses the H4 status temporarily ( H4 is not cancelled) and becomes the beneficiary of pending I-485 as we all know has no status but allows to remain lawfully inside usa .

If he/she stops working , he/she cannot get back the H4 status without uscis approval, but she/he could still continue to stay lawfully without status. To reinstate H-4 he/she must depart and enter with valid H-4 stamp and I-94 marked as H-4 dependent and not a parolee.

[vizcard]

Thank you for the response Vizcard. I meant W9 only. Employer sent W-9 form along with offer letter and other documentation asked us to fill and sign it before the start date. Thats why I wanted to check if there is an issue/concern with fill and sign W-9 while our 485 is pending.

No issue regardless. she can use the EAD and its no issue for the GC process. However, there is a tax angle here (completely unrelated to immigration).

W9 is a tax form for independent contractors/businesses. If she's an employee, she should be using a W4 for tax and an I9 for employment verification. You might want to check why they need you to fill a W9 and the compensation model. If shes doing a W9, most likely they are not going to withhold taxes from her paycheck or send a W2. Also, she will have to file a Schedule C with her tax returns. If they are treating her like an independent contractor, then you might want to read up on tax regs related to that. If there are no withholdings upfront, I'd keep ~30% of her pay aside for tax purposes as you will have to pay that next year.

[bvsamrat]

While stop working on EAD may not re-instate H4. Wha happen for the situation under

Wife in H4 valid till 2013 septemebr
Wife in H4 works on EAD valid till March 2013.
Stops working from March 2013 and EAD extention is delayed
But what would be her status in April 2013?
Does she have to go out of USA and return to have H4 validated?

Or reapply for H4? (appears silly as she already has H4 vaild till September 2013)

[Kanmani]

But what would be her status in April 2013? She has no status but as a beneficiary of pending I-485 , wife can remain inside usa without any status. As soon as one of the I-485 ( either primary or dependent's ) is denied, she becomes out of status


Does she have to go out of USA and return to have H4 validated? Yes

[bvsamrat]

Okay

If Used EAD once,H4 is out now. but could stay while 485 is pending till whatever time even though EAD is not extended?

Is it right?

[Kanmani]

Okay

If Used EAD once,H4 is out now. but could stay while 485 is pending till whatever time even though EAD is not extended?

Is it right?

Yes indeed.

[usernameisnotvalid]

"Does she have to go out of USA and return to have H4 validated? Yes"

According to my attorney, this is not true. You don't need to depart USA to get H4 status back.

But what would be her status in April 2013? She has no status but as a beneficiary of pending I-485 , wife can remain inside usa without any status. As soon as one of the I-485 ( either primary or dependent's ) is denied, she becomes out of status


Does she have to go out of USA and return to have H4 validated? Yes

[Kanmani]

"Does she have to go out of USA and return to have H4 validated? Yes"

According to my attorney, this is not true. You don't need to depart USA to get H4 status back.

Under What Section of the Regulations Would H-1 or L-1 Nonimmigrants be Granted Authorization for Continued Employment?


H-1 and L-1 nonimmigrants filing applications for permanent residence have two options with respect to work authorization, but the choices have different consequences. Such aliens, of course, may continue to work in accordance with the terms of their nonimmigrant employment authorization, as provided in § 274a.12(b)(9) or (12). This means that, while their application for adjustment of status is still pending, their employment is limited to the employer for whom the current nonimmigrant visa petition was a pproved.


In the alternative, when filing an application for permanent residence, an H-1 or L-1 nonimmigrant may also file a form I-765 application for unrestricted employment authorization as provided in § 274a.12(c)(9). After receiving an Employment Authorization Document, the alien would be eligible to work for any employer, and this work authorization would continue as long as the alien's application for adjustment of status remains pending. However, such an alien should bear in mind that, by accepting employment with an employer other than the one which filed the approved H-1 or L-1 nonimmigrant petition under § 274a.12(c)(9), the alien would no longer be in compliance with the requirements of the H-1 or L-1 nonimmigrant status.


If the alien's application for adjustment of status is ultimately approved, then it would not matter which option the alien had followed. However, if the application for adjustment is denied, then the alien's status would depend on which option was followed. If the alien had continued to work for an approved employer under the terms of his or her H-1 or L-1 status, and otherwise properly maintained such status, the alien would still retain his or her nonimmigrant status, if that status had not yet expired a ccording to the established terms. However, an alien who had chosen to work for a different employer during the period that his or her application for adjustment of status was pending would have thereby lost his or her H-1 or L-1 nonimmigrant status. Thus, if the alien's application for adjustment of status is denied, the alien would no longer be in a lawful status and would be subject to removal proceedings.

In addition, a dependent family member who had chosen to engage in unrestricted employment while t he application for adjustment of status was pending would lose his or her H-4 or L-2 nonimmigrant dependent status.

Therefore, if the principal's application for adjustment of status is denied, such dependent family members would also not be in a lawful status and could not revert back to H-4 or L-2 dependent status.

Source :- http://www.uscis.gov/ilink/docView/F...0-0-57820.html

[usernameisnotvalid]

That scenario happens if 485 is denied and primary is still maintaining H1b status. In that case, you may need to go out and come back but if everything is fine and 485 is still pending, I don't think H4 need to go back.

Please refer to FAQ section at the end of this article .......http://www.immihelp.com/greencard/ad.../eadap-hl.html

[Kanmani]

That scenario happens if 485 is denied and primary is still maintaining H1b status. In that case, you may need to go out and come back but if everything is fine and 485 is still pending, I don't think H4 need to go back.

Please read my reply to bvsamrat , I said H-4 can stay back as a beneficiary of pending I-485 eventhough the non-immigrant status (H-4) is gone. If anybody wants H-4 status back, they have to travel and re-enter iff primary is maintaining H1

[usernameisnotvalid]

This is another scenario which Ron mentioned in one of his blogs:

"Until your wife travels and returns using advance parole (assuming you maintain H1B status), she will remain in H4 status. If she leaves and returns using AP, she will not be able to change status. She will have to go abroad, get an H4 visa and use it to regain H4 status upon reentry to the U.S."

That scenario happens if 485 is denied and primary is still maintaining H1b status. In that case, you may need to go out and come back but if everything is fine and 485 is still pending, I don't think H4 need to go back.

[Kanmani]

In other words, you cannot "adjust or change your status" when you don't have a status at all, right?

A perhaps dumb question: Must you use the AP if your H4 stamp is valid during travel (as ours is until January 2014) even though my wife uses the EAD for employment purposes in the US? So she does "suspend" her status for employment, but does she have to do the same for immigration? I am assuming I will maintain H1B throughout. I remember reading on this forum some time back that she can use her H4 stamp for travel while simultaneously using the EAD for employment, although I cannot find that post now.

Your wife can use either H-4 stamp or Advance parole to renter the port. If she is admitted as H-4 , she re-instates her H-4 status but loses her H-4 status again on the day she starts working on EAD.

You can maintain your H1 status irrespective of your spouse losing her non-immigrant status. But the reverse is not true

[kumar19]

No issue regardless. she can use the EAD and its no issue for the GC process. However, there is a tax angle here (completely unrelated to immigration).

W9 is a tax form for independent contractors/businesses. If she's an employee, she should be using a W4 for tax and an I9 for employment verification. You might want to check why they need you to fill a W9 and the compensation model. If shes doing a W9, most likely they are not going to withhold taxes from her paycheck or send a W2. Also, she will have to file a Schedule C with her tax returns. If they are treating her like an independent contractor, then you might want to read up on tax regs related to that. If there are no withholdings upfront, I'd keep ~30% of her pay aside for tax purposes as you will have to pay that next year.

Thank you Vizcard for this useful info. on tax front. We asked employer to send W-4 now and waiting to hear from them.

Thank you Spec, Q and Kanmani for detailed views on what happens to H4 while working on EAD. I now have better understanding of the possible scenarios.

[qesehmk]

kanmani, the legal language that you produced above mentioned "unrestricted" employment. EAD I would think is not "unrestricted" employment. It has a validity period. So again - I am not sure that H4 is lost on EAD. I am reasonably confident to err on the side that H4 status continues to be maintained along with AOS pending.

In fact - when an H1 and H4 person applies for 485 - the status becomes dual automatically H?/AOS Pending. H4 (i.e. 797) will never be cancelled by use of EAD. Status is a different thing. But IMHO the person will continue to retain H4 status even while on EAD. Since its meaningless to cancel status when the person can easily go out and come back and regain H4 status and again lose it when s/he shows up at the employer's door. Bottomline - I am not quite confident that H4 visa and status remains intact even if EAD is used.

ONLY WHEN a person enters US with an expired H1/H4 and on AP, then the person has a single status AOS when granted entry. If such a person were to obtain H status, s/he will have to obtain an H approval (797). The person doesn't need to leave US and stamp and all that. The person can stay through completion or rejection of GC. if GC were rejected, then that is the situation where I think I am not sure. I would recommend asking a lawyer about that situation.

Q,
An alien is not allowed to switch between any two status without the approval of the authority, so nobody can reinstate the prior status automatically without obtaining the approval of the USCIS.

When a H4 dependent starts working on EAD, he/she loses the H4 status temporarily ( H4 is not cancelled) and becomes the beneficiary of pending I-485 as we all know has no status but allows to remain lawfully inside usa .

If he/she stops working , he/she cannot get back the H4 status without uscis approval, but she/he could still continue to stay lawfully without status. To reinstate H-4 he/she must depart and enter with valid H-4 stamp and I-94 marked as H-4 dependent and not a parolee.