Ron Gotcher

Well written. Most AOS applicants hang on their H-1b, because they are scared of 485 denial. But if their 485 will eventually be denied, then it will be for a reason that they know *now*.

My biggest concern is that people are wasting a lot of money for a remedy that really doesn't give them much. If someone REALLY wants to pay me to extend their H or transfer employers, I'll take it. First, however, I'll try to make sure that they know that they don't need to spend the money and that they can put it to better use on something else. I just hate to see people waste money on things like this.

Good article. One point H1 lovers will mention is - In case the AOS denied, We can not go back to H1 (as we are out of status) unless we are out of USA and apply next year cap subjected H1 quota. Could you pl. tell us your opinion on this? How can we go back to H1 without going out of USA?

===============
Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later.
========================

Fortunately, I've never received an AOS denial for one of my clients. I've seen them issued to other people, however, and they typically tell the applicant to leave the US within ten days. That language does not say "But if you hold valid nonimmigrant status you may stay." It just says get out of town within ten days or we will arrest you and put you into removal proceedings.

This means that those who have their AOS applications denied are flagged as people who need to leave. Personally, I wouldn't want to be in a position of having to try to persuade an ICE agent that notwithstanding my AOS denial, I'm really here legally because I maintained my H status. I suspect that the response would be to take you into custody and let you sort it out in front of a judge.

For this reason, if someone has been maintaining H status, and their AOS is denied, they need to leave the country and then re-enter. This will avoid the possibility of arrest as an unlawful overstay.

If you were in H status, and you let it expire, you can still apply for the remainder of the time you have left in H status (up to six years) even after your AOS is denied. You won't go back into the quota unless and until you go abroad for at least a year.

There is something else to remember if you are trying to maintain H status and expect to go back into it if your AOS is denied. When your AOS gets denied, you lose your eligibility for post six year extensions of H status. If you have been buring up your H time while waiting for an AOS adjudication, you will not recover that time. Absent the special circumstances described in AC21, you are only entitled to six years of H eligibilty. Do you really want to burn that up while waiting for an AOS adjudication?

Nice post Ron. Just a question about terminology. What status is someone in, when they give up H1 and move on a EAD. coz I understand that EAD is not a Visa status...so suppose at the PoE you are asked what status you are in...is there something compact to mention, or you just say EAD? :)

Thanks!

Good question. When someone enters the US, they are given status at the port of entry. Generally, it is either nonimmigrant status or parole. If you entered as an H-1B, filed for adjustment of status, then ceased maintaining H status, you are still an adjustment applicant and that is the legal basis for your authority to remain in the US legally.

If you enter using parole, then you are a parolee as an adjustment applicant.

I continue to receive e-mail questions about maintaining H-1B status while awaiting an adjudication of a pending application for adjustment of status. When I recommend against doing this, except in unusual circumstances, I typically receive the question “But what happens if my AOS is denied?” Without going into all of the reasons why I don’t consider that a serious concern, let’s explore a very specific issue for a moment.

Assume that one has been in H-1B status for four years and now applies for adjustment of status. The applicant has a choice: He or she may continue to use H-1B status or may switch over and use an EAD/AP combination. Putting aside the “what if something wholly unexpected happens” argument, it is pretty clear that the EAD/AP combination offers greater flexibility than trying to maintain H status. With the CIS about to extend the validity of those documents to three years, it is also less expensive to use EAD/AP in place of an H.

For argument’s sake, however, let’s assume that the applicant insists on maintaining H status while his AOS is pending. The average AOS processing time is three to five years. This will put the applicant beyond the six year limit for H-1B stays. No need to worry, the AC21 legislation allows for extensions of stay beyond six years. Right?

The answer is, perhaps. While the AOS is pending, the applicant may receive applications beyond six years. Let’s assume, however, that the “what if” situation occurs and the AOS is denied. Well, in that case, conventional Internet wisdom teaches us that the AOS applicant can just stay here in H status. As is often the case, conventional Internet wisdom is wrong.

In a policy memo dated April 24, 2003 and titled “Guidance for Processing H-1B Petitions as Affected by the Twenty-First Century Department of Justice Appropriations Authorization Act (Public Law 107-273): Adjudicator's Field Manual Update AD 03-09,” the CIS took the following position:

“(8) Extension of H-1B Status Based on a Pending Labor Certification Application or Employment-Based (EB) Immigrant Petition. As discussed in of the AFM, if the filing date of the labor certification application or the EB immigrant petition is 365 days or more prior to the filing date of the extension application, and the application is adjudicated on or after November 2, 2002 (the effective date of the legislation), the alien is eligible for an extension of H-1B status beyond the sixth year. The Secretary of Homeland Security is required to grant the extension of stay of such H-1B nonimmigrants in one-year increments, until a final decision is made:

to deny the application for labor certification, or, if the labor certification is approved, to deny the EB immigrant petition that was filed pursuant to the approved labor certification; to deny the EB immigrant petition, or to grant or deny the alien's application for an immigrant visa or for adjustment of status.” [Emphasis added]

In this example, the applicant would no longer be eligible for H status beyond six year. Since the applicant remained in H status while waiting for his AOS adjudication, all of that time would count against the six year limit. The applicant would not be allowed to remain in the US in H status following the AOS denial because that would involve a post-six year stay.

In effect, by insisting on remaining in H status while waiting for his AOS to be adjudicated, the applicant guaranteed that he would not be able to remain in H status if the AOS was denied.

When would you think this 3 year extension for EAD and AP might happen?

My understading is that qualified EAD renewals (those for applicants waiting for a visa number to become available) will start receiving an EAD that is valid for two years (and not three years). This change went into effect yesterday (June 30, 2008). I have not heard that advance parole will be vallid for more than a year at a time.

Make sure you understand the true cost of renewing your H1B when evaluating EAD vs H1B. After the second renewal with the same employer, the $1,500 security fee is no longer required. Although the initial and first renewal of the H1B can be valid for 3 years each, the second and subsequent H1B renewals are (I believe) valid for one year vs. an EAD that may be valid for two years. If you want to travel outside of the USA while working on the EAD, you'll also have to file for advanced parole which will cost extra. An H1B give you both work authorization and status for returning to the USA after a trip.

Something I just learned: If you're working on an H1B while waiting for your I485 to be approved, you can travel out of the USA and return on your H1B status. However, if your I485 is approved while you are out of the USA, your H1B status will no longer be valid and you may not have status for returning to the USA until you receive your green card. If there is any chance your I485 might be approved while you are out of the USA, you should consider filing for advance parole so you have permission to return to the USA.

UPDATE:

One additional reason for making sure that you have a valid EAD at all times is so that you can claim unemployment benefits in the event you lose your job. H nonimmigrants do not qualify for unemployment insurance. If you have an EAD, however, and can be referred out for job interviews, you do qualify for UI, even if you don't yet have your green card.

This is a great post Ron. Very helpful.

In the 2nd concern mentioned above, you mention that - "Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status."

Isn't job loss while on EAD a potential cause for being considered as out of status? I understand that job loss for a couple of days may be excusable, but what about being unemployed for extended periods of time while being on EAD?

Are there indications that USCIS is triggering a higher % of RFEs now, given the current economic conditions and the likelihood of a AOS applicant being out of a job is higher?

Also, while on EAD, an AOS applicant can take up any job. Doesn't this job still need to be in the same field, technicality as the job described in the labor application? What if the applicant took up a very different role than what was filed for during labor application (likely several years ago), wouldnt that also be grounds for denial?

It would be great if you could also help your readers understand on what are the top RFE questions asked when AOS is pending or right before the AOS is approved.

Thank you!