EAD AND H1B

[spchandra]

Firstly, apologies if this seems a rhetorical question but I still havent got a concrete answer, even from our attorney.

So, I am on H1-B with my employer, the H1-B was recently renewed and is valid till 2014, we just got our EAD as we filed for our I-485 in mid january.

Now that retrogression is around the corner and visas almost depleted for EB2I, I do want to explore more part time/additional work options using my EAD besides continuing to work for my current employer

Now the million dollar question-

Does using my EAD for additional employment (say a part time job from another employer) invalidate or void my H1-B status?,

As everyone knows its a safe and good option to stay on h1-B while I-485 is pending but then does using EAD with a different employer void my H1-B status?

My attorney clearly says No it does not, but then curiosity lingers, and then I read many blogs that read that it invalidates H1-B. So whats the correct answer, anyone please?

thanks,

[Belle]

There is no such thing as "voiding status". There is being in status or out of status. Use of EAD does not impact your H1 approval (but having an approval does not mean that you are in status). I am from a camp that believes that as long as you work for the employer that is stated on your I-94 and don't do any unathorized work, you are fine. Since your second job is authorized, I see no issues.

[Suncrest]

I do not agree with Belle's response. I had a similar question to my attorney, who happens to be one of the top Immigration attorney in the US. Here is his reply:

You are right that with the EAD both you and your wife can work anywhere. However, since you are currently on H-1B visas (in both cases) use of the EAD for both or either of you vitiates the H-1B visa for whoever uses the EAD for another job.

In your case,you must be in a position at the time of approval of your permanent resident status to return to your sponsor to work there since it was your employer that filed the petition. You can later change employers after you have obtained your LPR status. That rule does not apply to your wife, however.

Also, if either or both of you use the advance parole to enter the U.S. you will need to use the EADs for employment since use of the advance parole again vitiates the H-1B visa. You both can reestablish the H-1B in such case by leaving the U.S., obtaining the visa at a consulate in your home country, and returning to enter the U.S. in H-1B status. Thus, it is the use of the EAD and advance parole that changes the status but it can be reclaimed. Having the EAD and advance parole does not change anything, it is the use of either or both of them that does.

Hope that is helpful.

[Pokymon]

You can't maintain two status. Either H1B or AOS. If you use EAD, H1B will be invalidated (you have to file I-9). In case I-485 rejects, you have to leave the country and come back on H1B. If you maintain H1B (not using EAD) and I-485 rejects, you are still in status and continue your sweet like in US with H1B. By the way, I hate filthy immigration system. You can get GC through EB1C within 3 months without any education and labor, whereas EB2 and EB3 does require education and labor. There is a petition to fraudulent filing cases. Go figure!

[flyby001]

There were repeated posts that once you use your EAD for either part time or full time, your H1 will be voided. Some thing goes wrong with your I 485 you may be in trouble.

[Belle]

Guys, there is no such thing as "voided H1". That's just for starters... So, his I-485 is denied, and he stops working on the side. Now he has H1, and works only for H1 employer, and he never worked unauthorized. I would like to see a solid argument made that such person is out of status.

[INDNewYork]

THAT MEANS, CAN' T WE USE EAD AND AP COMBO CARD TO RE-ENTER THE US? I mean If we don't use EAD and continue on being on H1 with the same company...

[spchandra]

Belle and all, Many thanks for your input. I do see your point and true to your point, our attorney and couple others too indicated that this isnt written in rule about H1-B getting invalidated upon use of EAD as I still continue to work for my employer.

I will research more and make an informed decision.

[flyby001]

My Present employer is a X who filed my PERM, 140 and 485 and who also right now holds my H1. The client is Y. I will be getting my EAD in a couple of months. I want to go to a different client B and work on the EAD, keeping my H1 with A as there seem to be more openings for EADs and Green cards. If some problem with my 485 my H1 remains with my employer X and I would not be out of status. Is that true.

I have not understood the whole H1... EAD... issue can some one help with the basics. Would much appreciate.

[Belle]

Remain in status on H1, one needs to continue working for the H1 employer. If that employment is interrupted, the person is out of status for sure. To get back in status, generally, one would need to re-enter the country. Please remember that there is an H1 authorization (which is not impacted in any way by your employment situation), and there is H1 status, which is different.

[Pokymon]

Belle,

Thanks for your advice. This has made a easy transition for all of us who maintain H1B and EAD.

We take your word. We will work on EAD and if I-485 rejects, we are still in-status without doing anything on H1B.

I am learning from the master. This is a great news!

[Shurap1]

Belle,

Thanks for your advice. This has made a easy transition for all of us who maintain H1B and EAD.

We take your word. We will work on EAD and if I-485 rejects, we are still in-status without doing anything on H1B.

I am learning from the master. This is a great news!

This is partially correct. H1 authorization and H1 status are different. Status is what is specified on your I-94 at the port of entry. When you enter using AP, your status would be "Paroled" and not H1B which is why you would want to have EAD card to work. Now if 485 gets denied, then you simply CANNOT move to H1B status until you go out of country, get H1B stamping and re-enter using H1B visa. That way your I-94 would say status as H1B.

Now people talk about Cronin's memo and all that but so far no official conclusion was seen on that. Google for details.

[manokat]

Hey Spchandra have you made your informed decision yet? I am in the same boat and I was thinking of the same thing you are trying to do. Let me know what you came up with as your final opinion/decision.

Thanks

[cap-gap]

. When you enter using AP, your status would be "Paroled" and not H1B which is why you would want to have EAD card to work.

not ture

Now people talk about Cronin's memo and all that but so far no official conclusion was seen on that. Google for details.

did u read the memo or google it..apparently not..bcz u did not seem to understand the Q3 & Q4. or others who posted their experiences of this situation..

[cap-gap]

. We will work on EAD and if I-485 rejects, we are still in-status without doing anything on H1B.

"work on EAD"..be careful 'bout it..if you are in a big/legitimate firm, and inform the HR of "Switching to EAD" ..they may look for terminating your H1 status to avoid H1 liability..if you seek to continue/extend H1, you need to have an uniterrupted H1..again dont get the AP confuse you...

[sree2003]

Hey I too would be interested in hearing your research outcome. Can you share please !

Thx

[Belle]

This is partially correct. H1 authorization and H1 status are different. Status is what is specified on your I-94 at the port of entry. When you enter using AP, your status would be "Paroled" and not H1B which is why you would want to have EAD card to work. Now if 485 gets denied, then you simply CANNOT move to H1B status until you go out of country, get H1B stamping and re-enter using H1B visa. That way your I-94 would say status as H1B.

Now people talk about Cronin's memo and all that but so far no official conclusion was seen on that. Google for details.

You are right, you will be paroled at entry. However, being paroled is not the same as being admitted, so your last admission remains in H1. Paroled is a little bit like you entered but it does not really count - since you are acutally getting an advance parole while in the US. No status is given to you when you are being paroled, so that's why lawyers think that your last admission in H1 stands. Kind if like when you enter from Canada on I-94, but a lot more complicated, of course (you get a new I-94, for example).

[Shurap1]

not ture

did u read the memo or google it..apparently not..bcz u did not seem to understand the Q3 & Q4. or others who posted their experiences of this situation..

I have read it and there is tons of discussion on internet about it without any conclusive result. Some lawyers ever stated that it is just a memo and not a regulation that can be overriden at any time so do not rely on this.

[cap-gap]

I have read it and there is tons of discussion on internet about it without any conclusive result. Some lawyers ever stated that it is just a memo and not a regulation that can be overriden at any time so do not rely on this.

i can't post external link..but on the other board people posted their exp. as latest as last two months..where they used cronin memo for husband to enter on AP on wife on H4 afterwards..

[rani1876]

I am on H1B now and have EAD-AP with same employer.

If I enter US now using EAD-AP, I still run my payroll as an H1 employee or do I have to file i-9?

Please advise.

[Belle]

I am on H1B now and have EAD-AP with same employer.

If I enter US now using EAD-AP, I still run my payroll as an H1 employee or do I have to file i-9?

There is no difference in payroll, whether you are on EAD or H1. Also, filing I-9 would not change your status. You will most likely be considered in H1 status even if you file a new I-9.

[cakeboss]

I would like to know the answer too. May be any Murthy attorney can provide us with a valuable suggestion. Thanks.

[kalyan_ac]

I am on H1B now and have EAD-AP with same employer.

If I enter US now using EAD-AP, I still run my payroll as an H1 employee or do I have to file i-9?

Please advise.

You or your employer has to file I9 form.once you enter back using AP, your h1 becomes void.

[rani1876]

There is no difference in payroll, whether you are on EAD or H1. Also, filing I-9 would not change your status. You will most likely be considered in H1 status even if you file a new I-9.

So, if I am on H1B now and have EAD-AP with same employer. And if I enter US now using EAD-AP, you are saying I will most likely be considered H1 status.

Now, if I travel back and forth again, can I enter second time on a stamped H1B ?

[Belle]

So, if I am on H1B now and have EAD-AP with same employer. And if I enter US now using EAD-AP, you are saying I will most likely be considered H1 status.

Now, if I travel back and forth again, can I enter second time on a stamped H1B ?

I think I explicitly answered this question at least three times in this thread alone. I really have nothing to add.