EAD to H4

[pradeep78]

Hi there,

Background: My wife is currently working in US on F1 EAD card, which will be expiring on Jan 15th. I am also working on H1-B but I have cleared first two stages of green card. My priority date is April 25th (EB2).

Here is my question: If my priority date becomes current in the next visa bulletin and if I apply for I-485 before Jan 15, will she be considered in status? or Do I have to file H4 for her to remain in status?

I appreciate all your help!

Thanks,

Pradeep

[my2239]

Generally, filing for a 485 would authorize the applicant to stay in the US.

However since a 485 can always be rejected , depending on such a benefit to continue stay in US would not be wise

Here is what I would suggest

She can file a I 539 with a copy of your current H1 approval immediately

This way she at least will have a back up H4 status soon

In case your priority date is not current or in case your 485 is rejected, she will still be in good shape until her H4 expires

Don't you think this would be safer?

[pradeep78]

Thank you for the reply!

While H-4 application is pending, if she uses EAD card and later find that 485 is denied, then will she be out of status?

[my2239]

Hi,

Well she has some hope in this case

Since her current EAD was based on her F1 status, as long as she is following all rules and regulations pertaining to the use of EAD card (example working in a field related to optional practical training or compulsory practical training), she would be fine

Remember that it is important to check the status of he I 539 , literally every minute

Because she is illegal to use the EAD the moment her I 539 is approved

Understandably and reasonably, a delay of a few hours may be ok.

But if her H4 is approved on let us say a Monday. She cannot work the next day (Tuesday) even though she did not get her approval notice

This method is still very risky because some times the status of her H4 conversion (I 539) may not be updated online

Example: I filed for a H1 with a new employer 5 years back, I received the approval within a month but my case status still shows that the application is pending although I already have my green card also from the same employer!

So the best thing would be to voluntarily stop working on leave of unpaid absence the day you apply for H4.

This way even if the H4 conversion is rejected, she has time to reapply or simply continue on F1 based EAD, her F1 status

Remember that the EAD benefit related to her I 485 is totally different and is possible only after she qualifies to apply for 485 (based on your priority date) and has actually applied for 485 as well as EAD

In some cases the USCIS has the authority to decline issuing an EAD based on the fact that the GC may anyway be approved soon (don't worry this is rare and generally wont happen)

But needless to say, even with this kind of EAD, if there is some risk to the GC application, the EAD is instantly nullified

Having a H4 back up in such a case is phenomenally helpful

All the best

Thank you for the reply!

While H-4 application is pending, if she uses EAD card and later find that 485 is denied, then will she be out of status?

[pradeep78]

My priority date is current now. Thanks for all your help!

[pradeep78]

I am planning to apply for her H-4 in the second week of January so that she can fully utilize her EAD card. As I mentioned earlier, my wife's EAD card will expire on Jan 15th. If she works till that date then she will receive a paycheck after Jan 15th. Is that legal to receive a paycheck after EAD card expires? She has no intentions to work after EAD card expires.

[livliv]

Paycheck date and last day of work can be different. No problem there.

On OPT she is allowed to stay (but not work) in the 60 days past the OPT end date. Any change of status or adjustment of status can be filed in the 60 day period.

[pradeep78]

Thank you for the reply!