H1B in RFE, spouse's I140 approved

[poojanair]

Hi,

I am currently in USA and my H1B was applied in Apr 2016 and it is in "Response To USCIS' Request For Evidence Was Received" status now. 

My spouse's I140 got approved now. So if I apply for EAD and,

1) If EAD is approved before H1B, once H1B is approved will it override EAD?

2) If I apply EAD and H1B is approved before EAD approval, once EAD is approved will it override H1B?

Please respond.

--Pooja

[rohang]

if H1b gets approved, irrespective when. and if its COS (Change of status), your status will immediately become H1b. Your H4 and H4 EAD will become invalid.

but if your H1b is approved as CP, then you can continue with you H1 and H4 EAD.

[poojanair]

Thank you Rohan for the reply.. One more question, since the H1B is in processing state, can I apply for EAD at this stage ? Or do I have wait until it gets approved/denied?

Got this doubt because H1B has been submitted as COS and not CP.

--Pooja

[rohang]

You can, but you should not. 

if idea is not to have single day break b/w H1b and H4EAD (for continuation of work), it is very hard.

I will suggest to change h1b application to premium, and if -ve outcome, go for EAD.

[poojanair]

Hi Rohan, 

Thank You again for the reply..

I am not working now, so it is not about having a no work break... But to get to a safe zone (H1 or EAD) before there is any change in rules considering the current immigration situation.

If the H1B approval/denial takes another 3-4 months and by then if there is any rule change for EAD, that will be a risk. That is why I was thinking of applying for EAD now. The option you gave ("to covert H1B to premium") is one I had in mind too, but premium H1Bs have more chance to get rejected, right?

When you say "I can apply for EAD but I shouldn't", is it because of legal complications? 

--Pooja