EAD and H1 Dual Status holding and opportunites

[vsivarama]

Whatever the rules are, nobody will know for sure except USCIS. The key is to have a continuous H1B and a continuous EAD (Both without any gaps), and then you can do whatever you want. Then it doesn't even matter which status you were in. You will have your ass covered either way!

That's very true!! I am getting into the weeds of things now as a reminder to my earlier self when I was least bit bothered about immigration and unnecessarily delayed everything when it come to GC.

[AceMan]

Once you have an EAD you can work on anything. This is your 765 form. Having said that, for your 485, if you are required to continue to work on jobs you have applied with your skills listed in the petition.

You can work on any job, but for 485 j it has to be one matching to the skills

[qesehmk]

Q, Here are the nuances. If there is no break in H1 and you continue to maintain H1 when AOS is pending, then yes nothing is required but a H1 renewal. The same old rules for H1 apply. No need to go out of country for stamping. If you however switch completely to EAD let's say, for a year (essentially terminating your H1) and then want to move back to H1, then you need to consulate process.

Even if a lawyer told you that I would not believe it unless two different lawyers confirm it.

To my knowledge, the only thing you need continuous is your legal status. You don't want to accrue illegal presence and illegal work status. That's about it.

If your lawyer is telling you otherwise - I suggest spend some money and get 2nd opinion from a reputed lawyer. Any money your spent on lawyer you might save on an unnecessary trip for CP.

[qesehmk]

Q, is there any catch as to what type of jobs you can do. I would ideally want to do free lancing in my field on the side or something in Finance. But can the job on EAD be essentially anything? Driving Uber, Pizza delivery etc.?

Anything. There is no restriction .... just make sure you don't get into illegal stuff like Weed Delivery Services (which might be legal in some states too!!).

[srimurthy]

Creating this thread to capture the dual status work permits and details

[Positive]

H1B visa stamp on the passport does not control your status in the country, only the ability to travel back, which purpose is alternatively served by AP. For example, we all get H1b extension petitions (I-797 approvals) and the dates on that approval control whether your are in legal status irrespective of whether the visa stamp on the passport has expired or not. In fact, often the visa stamp expires while one stays and works in the US based on a newly approved H1b petition (I-797).

Often, that H1b approval is the only basis for stay so one does not pay attention to the I-9. The I-9 decides whether you are working based on the H1b or the EAD (when you have both options). The I-9 is supposed to be kept on record by each employer (subsequent or consecutive). Of course, self employment (1099 payments instead of W2) can only be on the basis of EAD work authorization. The way to switch from H1b to EAD if you entered using the H1b visa stamp is to fill up a new I-9 which includes the details of the new EAD card.

The other way around is murky -if you entered with AP and wanted to now switch to H1b status. My current attorney says you can't toggle between ead and H1b upon using AP for entry because you were paroled in. But my previous experience suggests otherwise, at least when you already have a current H1 approval (I-797). I worked for a while on ead and used ap for entry while my AOS was pending and my L1A had lapsed. Meanwhile I obtained a new H1b approval for a future date. Then, upon denial of the AOS I resumed work on the H1b when it became operative (after a gap of couple months between the denial and the H1b start date). I did not leave and reenter with a H1b visa stamp. The entire course of action was with the advice of my then immigration attorney (dad of the current attorney, no less ). This was back in 2010 so not sure if anything changed on that account. It's more likely that different immigration attorney interpret the law differently, some more permissibly and other less so. Marinating H1b status is beneficial to the attorneys of course. However, it does provide additional peace of mind should the AOS fall through. Apparently, a recent 5th circuit decision too k the view that the entire stay from lapse of nonimmigrant status (such as H1b status) to the denial of AOS was unlawful presence triggering a 10 year bar to reentry. I am bit skeptical and haven't been able to find the case via a google search. I suspect the case was more complicated than was conveyed. The conventional understanding is that anyone with a pending AOS is in a "stay authorized by the attorney general" and does not accrue unlawful presence.

I hope this helps.

[Positive]

Even if switching from EAD to H1b work authorization isn't as easy as filing a new I-9, I am positive that your H1b approval (I-797) is not invalidated or lapsed simply becuase you choose to work using an EAD. Worst case scenario, you may need to reenter using an H1b visa stamp to avail of the valid/unexpired H1b work authorization.

[AceMan]

Even if switching from EAD to H1b work authorization isn't as easy as filing a new I-9, I am positive that your H1b approval (I-797) is not invalidated or lapsed simply becuase you choose to work using an EAD. Worst case scenario, you may need to reenter using an H1b visa stamp to avail of the valid/unexpired H1b work authorization.

When you have a valid EAD/AP, why would a person spends money, take the pain of going through consulate appointments to get an H1 stamp?

[Positive]

When you have a valid EAD/AP, why would a person spends money, take the pain of going through consulate appointments to get an H1 stamp?

If they wanted to retain their non-immigrant (H1B) status. The only reason one would do that is to save oneself from a chaotic situation, in case the I-140/I-485 is denied. Also, one is usually subjected to secondary inspection upon entry using AP. It can be an unnerving experience for some.

[gammaray]

On a different note, if I am not wrong LeoAugust has filed AoS in Oct 2020, if the user waits for EAD, there shouldnt be any issue working voluntarily or paid

I know it's been hashed here several times and I think I remember reading several posts that working on EAD in parallel while working on h1b with a primary employer doesn't violate h1b regulations - so I guess that's a well established fact. But I haven't done that or asked a legal counsel about it, so personally I am a little wary.

[LeoAugust]

I know it's been hashed here several times and I think I remember reading several posts that working on EAD in parallel while working on h1b with a primary employer doesn't violate h1b regulations - so I guess that's a well established fact. But I haven't done that or asked a legal counsel about it, so personally I am a little wary.

@qesehmk, @Turbulent_Dragonfly, @gammaray and @delguy Thanks for your input. Any update I will keep all posted.

[vidya_garu]

@qesehmk, @Turbulent_Dragonfly, @gammaray and @delguy Thanks for your input. Any update I will keep all posted.

Rahul Reddy addressed this question in a recent youtube conversation, and said if you are on H1b with petitioning employer and work on EAD in parallel, you are technically on AOS and have abandoned H1 status.
Is this true?
How do we know that this is an established fact ?

[qesehmk]

..if you are on H1b with petitioning employer and work on EAD in parallel, you are technically on AOS and have abandoned H1 status.

To my knowledge this is 100% untrue.

You can use EAD with another employer and still continue to work on H1 for whoever H1 sponsor is.

Other gurus please do chime in since I think a lot of people might find this useful.

[vidya_garu]

To my knowledge this is 100% untrue.

You can use EAD with another employer and still continue to work on H1 for whoever H1 sponsor is.

Other gurus please do chime in since I think a lot of people might find this useful.

I was under this impression too... as technically EAD is just a work authorization. Working on H1b with petitioning employer & working on EAD for another employer is just similar to working for two employers with individual H1bs.

[gammaray]

I was under this impression too... as technically EAD is just a work authorization. Working on H1b with petitioning employer & working on EAD for another employer is just similar to working for two employers with individual H1bs.

Yeah but the question is what the status is when there are multiple I-9s with different work authorization documents (H1b/EAD). To know what's an established fact , I would suggest to ask your legal counsel and trust their opinion.

Folks in this forum, I am sure, have experience working on both work documents concurrently- and if they are then able to keep renewing their h1b while working on EAD and also have had no legal issues at the time of i485 adjudication then I would say it's a safe bet.

[andhraguy]

The not very good news...

https://twitter.com/ejtaub/status/1403359136637726723

Charlie: USCIS is doing an extraordinary job processing EB cases based on staffing levels. We believe if USCIS can't get to the Oct-Dec 2020 cases this year, they should have enough ready to go early in FY22 to make a big dent.

Everyone working a peak capacity with limited staff

elissa taub
@ejtaub
?
12m
Replying to
@ejtaub
Sounds like USCIS will not come close to approving all eligible AOS apps this fiscal year.

@cyrusmehta
At DOS open forum at AC21 Charlie said India EB-2 FAD in July Bulletin will be 6/1/2011; EB-3 FAD India will be 1/1/2013

[qesehmk]

I was under this impression too... as technically EAD is just a work authorization. Working on H1b with petitioning employer & working on EAD for another employer is just similar to working for two employers with individual H1bs.

Exactly. Remember both are work authorizations and you are entitled to both.

[Turbulent_Dragonfly]

To my knowledge this is 100% untrue.

You can use EAD with another employer and still continue to work on H1 for whoever H1 sponsor is.

Other gurus please do chime in since I think a lot of people might find this useful.

Yes this is accurate to my knowledge after research on this.

You can do another job on the EAD as long as you continue to fulfill the duties of the H1. You will violate H1 status if you either don't work per the time and salary requirements listed while filing for the H1, but still protected by pending AOS.

[ShivaPrasad]

Yeah but the question is what the status is when there are multiple I-9s with different work authorization documents (H1b/EAD). To know what's an established fact , I would suggest to ask your legal counsel and trust their opinion.

Folks in this forum, I am sure, have experience working on both work documents concurrently- and if they are then able to keep renewing their h1b while working on EAD and also have had no legal issues at the time of i485 adjudication then I would say it's a safe bet.

I think mode of entering the country decides the AOS. If you enter on AP, then your status is AOS and H1-b status is voided. But if you enter on H1 visa, then you can continue working on H1B as well as EAD.

[ivohra]

Exactly. Remember both are work authorizations and you are entitled to both.

I have asked my immigration lawyer this same question recently and the answer was that I cannot work on two jobs where one is on H1b and the other on EAD. I have to choose one path.

[vidya_garu]

I have asked my immigration lawyer this same question recently and the answer was that I cannot work on two jobs where one is on H1b and the other on EAD. I have to choose one path.

Of course, anyone in this situation will choose AOS EAD which will allow employment with multiple employers with no issues at all. I still think simultaneous H1+EAD is a grey area.

[vedu]

I have asked my immigration lawyer this same question recently and the answer was that I cannot work on two jobs where one is on H1b and the other on EAD. I have to choose one path.

Actually, I did exactly that. I worked on H1B for my primary employer and did other consulting jobs on EAD simultaneously. Then I went to India, came back on AP and continued to work on H1B with the same employer and did other jobs on EAD. Then came the time to renew the H1B, and USCIS approved the renewal without any issues, not one time, two times! But then I wasn't going around asking lawyers what to do. I have mentioned this many times before on this forum, but this question keeps coming back. I am speaking from the experience. I may be technically wrong according to those expensive lawyers, but good folks at USCIS never gave me problems on such trivial matters.

[gammaray]

I think mode of entering the country decides the AOS. If you enter on AP, then your status is AOS and H1-b status is voided. But if you enter on H1 visa, then you can continue working on H1B as well as EAD.

Well, not entirely true. Mode of entering does decide the legal status (but it can't be the only thing). So entering the country using AP while working on H1b does change the legal status to "Parole", however the individual can continue to work with the original employer on the h1b on file as if nothing changed. This is assuming that the h1b is still valid and hasn't expired. This quark is allowed by an old USCIS memo called Cronin's memo. Furthermore, the company can file for a timely h1b extension before the h1b expiry and if approved the individual "officially" goes back to an h1b status from the Parole status.

However, what if the individual hasn't travelled outside the country and starts using EAD? So there has to be more than what is documented at the POE that dictates the individual's legal status.

[vidya_garu]

Actually, I did exactly that. I worked on H1B for my primary employer and did other consulting jobs on EAD simultaneously. Then I went to India, came back on AP and continued to work on H1B with the same employer and did other jobs on EAD. Then came the time to renew the H1B, and USCIS approved the renewal without any issues, not one time, two times! But then I wasn't going around asking lawyers what to do. I have mentioned this many times before on this forum, but this question keeps coming back. I am speaking from the experience. I may be technically wrong according to those expensive lawyers, but good folks at USCIS never gave me problems on such trivial matters.

I don't know why lawyers wouldn't answer this question straight on. Even Rahul Reddy, somewhat sidestepped this issue and asked to switch to AOS EAD if I-140 is approved.
Sorry for my poor understanding, when you came back on AP, weren't you paroled in , how come your H1 status was maintained?

[gammaray]

I don't know why lawyers wouldn't answer this question straight on. Even Rahul Reddy, somewhat sidestepped this issue and asked to switch to AOS EAD if I-140 is approved.
Sorry for my poor understanding, when you came back on AP, weren't you paroled in , how come your H1 status was maintained?

Read my response above and also this Murthy post which has a good explanation:

https://www.murthy.com/2008/03/21/ef...pending-i-485/

So continuing to work on H1 after entering on AP with the original employer is not the question. That's clearly allowable. Question really is if concurrent jobs using h1b and EAD are allowable. Just because USCIS doesn't question it (maybe because they only way they would know someone is working multiple jobs on EAD is through I-9s or tax returns?) doesn't necessarily make it legal. Which is why I would always suggest consulting a good lawyer.