Discussion in 'Filing for AOS with an approved I-140' started by mar212011, May 21, 2015.
SBR - I think so, though I'm a relative newbie here too...
I think the feeling is NO you cannot do AOS since you will be on EAD and not on an H1b non immigrant status etc and you would need to go to your home country and go through consular processing(CP) when dates are current. Of course there is a school of thought that says if you maintain H1b etc you can do AOS....details are sketchy so far and hopefully there is a provision for AOS. Ron is the authority on this...
Ron has previously mentioned that anyone legally present in the US can go in for AOS if they're eligible.
Nps ProfessorChaos.. all of us here to share our thoughts by which we may get some more clarity ...
Aram - yes its a fact that one can not have both EAD and H1B , it would be either or . Also there is something called CP if one is not maintaining H1B due to choice for EAD and AP. But if one is in US and has EAD and AP with the new reform , still does he/she need to go to home country to get the CP done for AOS when PD becomes current? May be I am asking something which is difficult say right now... just try to get whats your idea ...
Section 245(a) of the Immigration and Nationality Act provides that a person who was admitted or paroled into the United States, and for whom a visa is immediately available, is eligible to adjust status. Section 245(c) says that people who have been in unlawful status at any time are ineligible to adjust status. Finally, Section 245(k) says that Section 245(c) does not apply to EB immigrants who have less than 180 days of unlawful status since their last lawful entry as a nonimmigrant.
If someone on an H1B receives an EAD and uses it to work, they will not be in unlawful status. I have to believe that anyone who does this will be deemed to be in lawful status. Otherwise, folks who do this will become deportable almost immediately. Since that is not going to be the case, I think it is safe to assume that they will be in lawful status - not necessarily nonimmigrant status - but definitely lawful status.
As such, I don't see how they can be disqualified from applying for and receiving adjustment of status.
Ron would one be considered to be in non-immigrant status if they're working using their H1, but have used their EAD to start a venture on the side?
In that case, no, but you would be in lawful status.
One of my bachelor friend got his I-140 approved and was saying his next task his to get married
I am happy for him but that also made me think that even with I140-EAD/AP relief you are still screwed if you are single and wants to get married and get your wife here. You still need to maintain H1 status. I don't think it's possible to apply EAD/AP for dependent from home country like CP or follow-to-join.
I485 applicants are able to get ead/ap for their dependents as well. Perhaps that would be true for ead/ap based on approved I140.
Interesting... I didn't know that! As a single guy I'd like to keep the option of sponsoring a dependent open.
Besides not being able to work if you EAD hasn't been reissued in time and being out of status immediately if your Green Card is denied, are there any disadvantages of not maintaining H1 status if you have an EAD?
ProfessorChaos-There is no disadvantages of not maintaining H1B status if you get EAD. Rather I feel EAD is better option over H1B if you get it lawfully
Ron - Can you please explain what do you mean by 'Lawful Status' ? For example - if someone is in H1B extension period ( like after 3 years he gets H1B extension for say another 3 years but he is in US not yet get the re-stamped from home country US consulate) and if he gets the EAD/AP based on the I140 approval in the extension period , will he be able to do AOS as well while applying for EAD/AP? or he will be considered unlawful as he has expired H1B visa even if he is in valid H1B extension period ? Please share your thoughts ....
SBR - The Visa stamp is just a travel document, and has no bearing on your Lawful/Unlawful status. You can have a valid Visa stamp, but be in the country unlawfully (I'm not using it as a precise legal term) if your employment is terminated.
Lawful nonimmigrant (temporary) status generally is designated by an unexpired arrival / departure form (I-94) issued to the foreign national either by the U.S. Citizenship and Immigration Service (USCIS) or U.S. Customs and Border Protection (CBP). However, the I-94 alone is not enough to hold valid nonimmigrant status. It is also necessary for the foreign national to act in compliance with his/her particular lettered classification.
For example, an individual in H1B status must work for the petitioning employer, while one who is in H-4 status is prohibited from working altogether. Generally, a person who fails to comply with the assigned status will not be considered in lawful nonimmigrant status any longer (i.e. out of status).
As far as I know, A person in the situation you have described will not be considered as unlawful. It should be good as long as the person holds a valid H-1B petition ( Initial H-1B term + Extension ).
thanks MSR ! So being in Initial H-1B term + Extension , he/she can go for EAD+AP with AOS after I140 approval - is that we can conclude ?
Yes. That's my opinion. Please wait for Ron's opinion/comment too.
MSR's analysis is correct. The thing that we don't know is how they are going to treat situations where someone gets a combo card and then lets their H petition lapse. I suspect, they will consider it a continuation of lawful status. Otherwise, there will be complete chaos.
Thanks Ron. The situation you described is applicable to me. I let my H Petition lapse this year after I got my combo card last year by moving to EAD on the day my H-1B Petition expired. I hope i'm in lawful status. I believe I'm ok as I assume I will be considered in lawful status till USCIS approves/denies my AOS Application.
You are definitely in lawful status because you have an I-485 pending.
Ron, if you let your H status lapse (let's say you were unemployed for a few months), can you apply for another H1? Would you be subject to the annual cap if you do?
Edit: Also, can you sponsor dependents while on EAD?
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