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140 Ead Rule

Discussion in 'Filing for AOS with an approved I-140' started by mar212011, May 21, 2015.

  1. msr

    msr Member

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    Thanks for confirming, Ron.
     
  2. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If you have an EAD and you let your H petition expire or you stop working, you are not out of status. You can file for a new H1 and you will not be subject to the cap. As for bringing dependants, you have to be in valid H1B status.
     
  3. msr

    msr Member

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    Ron,
    Can a new H1 be filed right away when an applicant is still in US itself, if a pending AOS gets denied ?
     
  4. Ron Gotcher

    Ron Gotcher Attorney at Law

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    The petition can be filed at any time. The beneficiary will have to go abroad, however, to get new H status.
     
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  5. Kamakazee

    Kamakazee Super Moderator

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    Ron, I have a question. If someone goes from H1B to H4 and then wants to go back to H1B, will that person be counted towards the cap? Or not, because that person was counted towards the cap before.
     
  6. msr

    msr Member

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    Thanks Ron. The fact that the Applicant will not be subjected to the cap in this scenario is a good thing.
     
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  7. SBR

    SBR New Member

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    Ron , Thanks for your reply... correct me if I am wrong - what I knew was, one can not have both EAD/AP and H1B. If someone chooses to be in EAD/AP then he is considered to be out of H1B status immediately even if he has a valid H-1B petition ( Initial H-1B term + Extension ). This may not be the scenario for the candidates current GC/EAD process persuading for EAD but if the new reform is applied then there will be candidates who may have valid H1B ( Initial H-1B term + Extension ) and also will be eligible for applying EAD/AP with approved I140. In that case what may happen ?
     
  8. Ron Gotcher

    Ron Gotcher Attorney at Law

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    That can happen. Your status will be determined by what you use as work authorization on your I-9 and whether you do any work that is inconsistent with your H1B petition.
     
  9. ProfessorChaos

    ProfessorChaos New Member

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    What happens if I'm working on H1, but use my EAD to register for eg a freelance photography business that generates a little bit of income (not substantial)?
     
  10. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Then you lose your H1B status because you are doing work that is not included in the H petition. You won't go into unlawful status, however, because the EAD authorizes the employment.

    Some people disagree with my interpretation. They contend that as long as you otherwise maintain H1B status, your "side job" is covered by your EAD. I'd really like for this to be the case. My interpretation is based on conversations with USCIS and ICE officials.
     
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  11. Kamakazee

    Kamakazee Super Moderator

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    Ron, I think you are correct. When you do a "side job" and using your EAD, it means you are basically using your EAD which means you lose your H1B status.
     
  12. Ron Gotcher

    Ron Gotcher Attorney at Law

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    At the same time, you could argue that an EAD is concurrent work authorization.
     
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  13. Kamakazee

    Kamakazee Super Moderator

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    But you can either be on EAD/AP or H1B. You cannot have both.
     
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  14. msr

    msr Member

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    I totally agree with you on this, Ron. Once EAD is used as work authorization on your I-9, H-1B status is lost. You can be on either EAD or H-1B but not on both.
     
  15. msr

    msr Member

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    I second that :).
     
  16. SBR

    SBR New Member

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    Yes , understood . For H1B , the I-94 number is given to I-9 and for EAD I think it will be the alien number which is provided in I-9 and that distinguishes if the candidate is authorized to work on the basis of H1 or EAD. Right ?
     
  17. Ron Gotcher

    Ron Gotcher Attorney at Law

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    Well, that and the fact that you have to identify the specific document.
     
  18. SBR

    SBR New Member

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    I checked the I-9. Its alien number for EAD and i-94 for H1B or L1B...
     
  19. IAmLegalAlien

    IAmLegalAlien New Member

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    Going by this discussion, what I understand is one can be either be on H1 or EAD status. So when I140 EAD rule becomes a reality what would be
    the status of this dependent in following scenario -
    Let's says husband on H1 and wife on H4 receive EAD based on I140. Husband starts using EAD, wife doesn't want to work, so not using EAD.
    Since husband is on EAD, he is not on H1. What is the status of wife now? Will she be out of status ?
    This scenario can even happen now when you receive EAD/AP based on pending AOS but one can still stay in the country based on pending AOS. But in I140-EAD case, the AOS is still not applied. How will this scenario be addressed? Any thoughts?
     
  20. Ron Gotcher

    Ron Gotcher Attorney at Law

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    If the H1 principal loses his H1 status, the H4 dependent automatically loses her status.
     

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