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Work/Travel options after 485 : H1 Versus EAD/AP Work/Travel options after 485 : H1 Versus EAD/AP. Comparison between keeping H1 versus forfeiting H1 and using EAD/AP after 485 filing.

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  #1  
Old 11-10-2008, 03:03 PM
ntpatil ntpatil is offline
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Default Entered on H4, Working on EAD, Reentry on H4, use EAD ?

Gurus,

July filer...

Here is my current situation
1. Entered US on H4. H4 is stamped on the passport until 2010.
2. Applied for EAD (July filer) and current using EAD for work
3. Will go to India this year end and planning to come back on the stamped H4.

Here are my questions

1. When I entered on H4, on the POE, the officer would have marked my status as H4. Now, I have used EAD...so currently I am on AOS pending status. How do they know this? Is this based on the I-9 that I have filled for the employer? But I9 form is retained by the employer unless requested by USCIS, so how does USCIS know that I am on EAD (AOS)?

2. When I go to India, I will surrender the I-94 that I received when I entered on H4. So when they tally their records, will they treat me like H4 leaving US or EAD (AOS) leaving US?

3. When I reenter US on H4, again my status will change to H4 right?

4. At this time I assume that the EAD card that I have is still valid (Not invalidated because I entered on H4 and not on EAD/AP. So, If I have to start working again, Do I need to fill the I9 form again for the same employer.

5. If I do not fill the I9 form, then how will USCIS know that I am working on EAD...which means that my status is AOS pending?

6. In my case, the primary applicant chooses to remain on H1. So if our I485 gets denied does this mean that I am out of status because I am using EAD or does it mean that I am fine because I entered on H4 and that is what they have in their record.

7. If I am out of status, can I file for a change of status to H4 or an extension to the previous H4 from US itself so that I continue to be in status…or do I have to leave and enter the country again?

Thanks in advance for your replies
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  #2  
Old 11-10-2008, 03:20 PM
helmet helmet is offline
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Default it will be in problem

Once you used EAD your status is AOS. You can't go back to H4/H1 unless some bad thing happened like 485 is denied.
once started usign EAD you can't go and come on H4/H1 status...
you have to use AP for travelling. If you have a doubt talk to the atternoy that filed your 485.
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  #3  
Old 11-10-2008, 03:45 PM
fall2004us fall2004us is offline
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Default

Nice set of questions...
as long as primary is H1 and is working for the sponsored employer, switching the status between H4 and EAD should not be a problem, It is always good to have a set of approved AP.
I might be wrong, please throw some more suggestions.

Last year, One of my co workers went to china, just before he left, he got his green card, a month before he had got his AP. When he arrived at the POE, he made use of his AP instead of GC, when I asked him why he did that? He said he wanted to take advantage of AP as he paid for the AP
Does that mean that his GC is invalid, the officer at POE could have cross checked whether he had a GC !!!
Similarly, the officers cant check between EAD and H4..
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EB2
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I-485, AP, EAD Filed 7/2/07 NSC
RD: 7/30/07, FP: 8/24/07
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2nd EAD received - 8/28/08 (2 year validity)
3rd EAD: received - 8/25/10 (2 year validity)
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LUD: I-485 - 8/26/07, 5/6/08 (address change)
Hard LUD (RFE) asking for G 325 & birth cert - 03/09
USCIS recvd the response 4/8/09 - same day hard LUD - under process
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  #4  
Old 11-10-2008, 03:49 PM
ntpatil ntpatil is offline
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Default

helmet, fall2004us,

Thanks a lot for your replies. However, I would appreciate if someone responds to all of the questions that I have outlined. I do not want to stray away from the subject.
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  #5  
Old 11-10-2008, 04:42 PM
LostInGCProcess LostInGCProcess is offline
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Default

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Originally Posted by ntpatil View Post
Gurus,
Thanks in advance for your replies
Once you have started using EAD your H4 status is invalid. There is no process to notify this to USCIS. So, USCIS would not know when you changed from H4 to EAD. However, if they audit your case, they can easily find out about it....that's a different story.

I don't understand why you want to enter on H4 status and work on EAD as soon as you enter US...thereby invalidating the H4, since you are not complying with h4 status.
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  #6  
Old 11-10-2008, 05:15 PM
ntpatil ntpatil is offline
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LostInGCProcess,

The only reason I want to still enter on H4 is that my H4 is stamped until 2010, hence why not use it and save money and hassle on AP entry. As you have said that working on EAD immediately invalidates the H4 status. This is OK for me, but at least I have avoided the AP procedure stuff. Plus the primary applicant is on H1 and hence we both can enter on H1 and H4 respectively rather than one entering on H1 and the other on AP. Let me know if this clears your doubt and if so, can you think this would work out. Also, if you can, please respond to my other questions

Thanks,
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  #7  
Old 11-10-2008, 05:18 PM
chaanakya chaanakya is offline
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Cool Solution confirm for H4/EAD case

I was exactly in the similar situation. My wife entered on H4, started work on EAD. Now we are traveling to India, both have AP as well as H visa (H1 for myself, H4 for wife). I talked to our corporate lawyers pretty much the exact same questions you are asking. Here is the response (that I have in writing from the lawyers):

1. H4 status is invalidated the first day you report for work on EAD. While you are working, your status is AOS in the US. There is no consequence of this change (ie you do not have to report anything to the USCIS).

2. When you reenter the US, you can use H4 for reentry. (Yes, even if you are still employed the employer with an EAD and went to India only for "vacation"). This is because at the point of entry, the definition for "working on EAD" is actually reporting to work. As long as the H1 is valid, you can enter on H4. Your status at the point of entry is H4 admission. However, if you report to work the next day, your H4 status again is invalidated and you are back on AOS.

This is a pretty confusing scenario for many and multiple lawyers that I consulted have agreed with the above legal advise.

So, even though we have AP, we would be using our H visas to enter.

Send me a PM if you have further questions.
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  #8  
Old 11-10-2008, 05:19 PM
kumar1 kumar1 is offline
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Default

I am in the same situation. They say once you start using AP, H4 becomes invalid....my wife IS working on EAD, she was in India for a while and came back on H4, again resumed job on EAD...then we renewed her EAD and put her current status as H4.........no issues whatsoever.

Use EAD, travel on H4......live life. I do not see any issue.



Quote:
Originally Posted by ntpatil View Post
LostInGCProcess,

The only reason I want to still enter on H4 is that my H4 is stamped until 2010, hence why not use it and save money and hassle on AP entry. As you have said that working on EAD immediately invalidates the H4 status. This is OK for me, but at least I have avoided the AP procedure stuff. Plus the primary applicant is on H1 and hence we both can enter on H1 and H4 respectively rather than one entering on H1 and the other on AP. Let me know if this clears your doubt and if so, can you think this would work out. Also, if you can, please respond to my other questions

Thanks,
__________________
Came to US in 2001
First Labor - 2002 (BEC, job loss)
Second Labor- July 2005 EB3-I
I-140 - Approved
I-485 - July 2007 and pending
Filed 2nd labor in 2009
Filed 2nd I-140 in 2009
Ported the PD
GC in 08-2010 almost 10 years after coming to the US.
*****************************
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  #9  
Old 11-10-2008, 05:30 PM
LostInGCProcess LostInGCProcess is offline
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Default

Quote:
Originally Posted by ntpatil View Post
LostInGCProcess,

The only reason I want to still enter on H4 is that my H4 is stamped until 2010, hence why not use it and save money and hassle on AP entry. As you have said that working on EAD immediately invalidates the H4 status. This is OK for me, but at least I have avoided the AP procedure stuff. Plus the primary applicant is on H1 and hence we both can enter on H1 and H4 respectively rather than one entering on H1 and the other on AP. Let me know if this clears your doubt and if so, can you think this would work out. Also, if you can, please respond to my other questions

Thanks,
There is no hassle when one enters on AP. You can continue to be on H1 and enter on H visa, and your wife can work on EAD and enter US using AP.

For all the questions that you have posted, the simple logic to follow, is once you use EAD, your H4 is invalid. Once you travel abroad and want to re-enter with H4 status, you are basically stating that you are going to comply with the immigration rules pertaining to H4 status. And then after entering you want to use EAD, then it would invalidate H4.

I suggest you consult a good immigration attorney.
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  #10  
Old 11-10-2008, 06:26 PM
roseball roseball is offline
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Default

The only issue I see with using H1/H4 visa for re-entry is that if your I-485 is approved while you are outside US and you use H1/H4 for re-entry, it invalidates your GC and you have to start all over again. You either need to have your GC or an approved AP in hand when you re-enter US in this scenario...
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  #11  
Old 11-10-2008, 06:44 PM
LostInGCProcess LostInGCProcess is offline
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Default Not true!!!

Quote:
Originally Posted by roseball View Post
The only issue I see with using H1/H4 visa for re-entry is that if your I-485 is approved while you are outside US and you use H1/H4 for re-entry, it invalidates your GC and you have to start all over again. You either need to have your GC or an approved AP in hand when you re-enter US in this scenario...
That is not true. You should have no problem re-entering if you have a valid Visa or AP, even when GC is approved. Technically, you have to be first "admitted" and then the green card status takes effect. you have to show the IO at POE, the latest I-485 status if you have, which they can always check in their system.
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  #12  
Old 11-10-2008, 07:14 PM
ntpatil ntpatil is offline
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Default

Quote:
Originally Posted by chaanakya View Post
I was exactly in the similar situation. My wife entered on H4, started work on EAD. Now we are traveling to India, both have AP as well as H visa (H1 for myself, H4 for wife). I talked to our corporate lawyers pretty much the exact same questions you are asking. Here is the response (that I have in writing from the lawyers):

1. H4 status is invalidated the first day you report for work on EAD. While you are working, your status is AOS in the US. There is no consequence of this change (ie you do not have to report anything to the USCIS).

2. When you reenter the US, you can use H4 for reentry. (Yes, even if you are still employed the employer with an EAD and went to India only for "vacation"). This is because at the point of entry, the definition for "working on EAD" is actually reporting to work. As long as the H1 is valid, you can enter on H4. Your status at the point of entry is H4 admission. However, if you report to work the next day, your H4 status again is invalidated and you are back on AOS.

This is a pretty confusing scenario for many and multiple lawyers that I consulted have agreed with the above legal advise.

So, even though we have AP, we would be using our H visas to enter.

Send me a PM if you have further questions.
Hi chaanakya,

Thanks a lot for your replies. I had a few more questions -
1. Did your wife fill a new I9 form with the same employer when she was back again (on H4). The reason I am asking is that when you enter again you get a new I94 and that needs to be reported on the I9.

2. If the primary applicants 485 gets denied, then the dependent who is using EAD becomes out of status. At this point what to do for the dependent. Does he/she need to go out of the country and return back with a new H4, or can we somehow get back to H4 status from the US itself (note that the primary applicant is still in H1 status)
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  #13  
Old 11-10-2008, 11:11 PM
chaanakya chaanakya is offline
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Default I9 form and out of status question

Hi there

Yes, when you join work you need to fill a new I9 to officially claim your right to employment using an EAD (if you have entered as an H4). Basically, this is the documentation to prove that you are undertaking authorized employment and giving up your H4 status.

Now, if the underlying 485 of the primary applicant gets denied, then you can continue working if your H1 is still valid but sadly your wife cannot work and has to stop working immediately until a MTR is filed and USCIS resumes the case processing pending decision of MTR.

A friend of mine was in this situation. His wife stopped working, their lawyer filed MTR (wife took unpaid leave of absense for 2 months) and after the case status changed to under consideration, she resumed working. Remember, the EAD is only valid as long as the 485 is not in a denied status. If employment is continued after 485 is denied and before MTR is accepted, you can later face problems for having engaged in unlawful employment in case you have an interview.
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  #14  
Old 11-11-2008, 02:19 AM
ntpatil ntpatil is offline
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Default

Quote:
Originally Posted by chaanakya View Post
Hi there

Yes, when you join work you need to fill a new I9 to officially claim your right to employment using an EAD (if you have entered as an H4). Basically, this is the documentation to prove that you are undertaking authorized employment and giving up your H4 status.

Now, if the underlying 485 of the primary applicant gets denied, then you can continue working if your H1 is still valid but sadly your wife cannot work and has to stop working immediately until a MTR is filed and USCIS resumes the case processing pending decision of MTR.

A friend of mine was in this situation. His wife stopped working, their lawyer filed MTR (wife took unpaid leave of absense for 2 months) and after the case status changed to under consideration, she resumed working. Remember, the EAD is only valid as long as the 485 is not in a denied status. If employment is continued after 485 is denied and before MTR is accepted, you can later face problems for having engaged in unlawful employment in case you have an interview.
Thanks again Chaanakya,

I understand that the dependent loses the EAD status when the underlying 485 is denied. However, if the primary applicant is still maintaining H1, then is there a way to get H4 back by staying here in the US. Or is the only way to get H4 is to go back to India and come back here. At this point I do not care about filing an MTR to open the 485, but I need to get back to H4 status.
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  #15  
Old 11-11-2008, 03:11 AM
chaanakya chaanakya is offline
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Default Hmmm, I-539 won't work

I-539 only allows you to change status between various non-immigrant categories. It seems that reentering the country on H4 is the only way (there may be some way to do this other than that but i am not aware of it.)

If your H1 is valid, why even bother trying to change status in the US? Simply have wife come back on an H4 and all will be good, I am sorry i couldnt be of more help
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