EAD (AOS) FAQs

Technically, you can be unemployed while on EAD/AOS/I-485. But if you are benched by the employer who petitioned for your green card, that casts doubt on the availability of the green card job. That can lead to revocation of the green card process unless you change employers using AC21 portability.

Your H-1B remains valid as long as you do not use the EAD. Mere approval of an EAD has no impact.

1. You can have multiple jobs while you are on EAD as long as your intention towards one remains clear. Once the 180 days have passed you can even change jobs or have multiple jobs and also potentially work for yourself.

2. Absolutely. 

3. I would suggest you produce both W-2s. 

4. At any time when you go for an I-485 interview you are put under penalty of perjury and hence you must tell the truth.

Watch the Video on this FAQ:

Filing Supplement J, staying without work on EAD, H-1B denial effect on I-485

Video Transcript

1. Usually if you do an H-1B transfer or if the I-140 is revoked that becomes their source of knowledge.

2. Absolutely, the regulations only require that when asked, you should be able to produce an offer of employment for the same or similar job and file Supplement J. This is only when asked.

3. If you have a I-485 pending you are always allowed to stay in the United States, but make sure that you have an EAD.

4. Normally an H-1B denial has no effect on the Adjustment of Status I-485. FAQ in detail...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: I-485 AOS filed - Maintaining H-1B status after getting EAD/Changing jobs after I-485/Being unemployed/Start own business, etc. (Filed for I-485, EAD, AP along with EB-2 to EB-3 I-140 downgrade)

Watch the Video on this FAQ: Eligibility for and the process of EB-3 to EB-2 Porting

Video Transcript

You can always go up and you can always go down as long as your PERM was filed as an EB-2. If you filed your PRM as an EB-3 then you're not going to be able to upgrade to EB-2. But if your PERM was filed as an EB-2 you can downgrade I-140 EB-3. You can go back upgrade to EB-2 if you already have an EB-2 approval. You can file a downgrade second case as EB-3 with the same PERM. FAQ in detail...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch the Video on this FAQ: Can we open a company while on EAD? What kind of questions/documents will be needed in the I-485 AOS interview?

Video Transcript

1. You cannot open a company in your spouse's name. It would be illegal if you do business through your spouse. But if your spouse wants to do business he or she can. So there is a shade of distinction between what you said. Can I do business through my spouse and the answer is "no" and can my spouse do business the answer is "yes".

2. Yes, you will need to provide copies of all your documents and it is not necessary that she gets a W2 if she's getting a distribution instead of a salary that's fine.

3. First of all, I don't think if the company is not yours and is your wife's and you have nothing to do with it, then you have no questions about it, your wife will have to answer questions about what kind of company etc... More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch Video on this FAQ: I-485 applicant holding multiple jobs on EAD

Video Transcript

1. If you qualify under AC21 that is same or similar to the offered job under the green card or if you are going through the green card sponsoring employer, you will maintain that job. So, if you are currently maintaining that job full time and doing all other jobs at the same time or you intend to return back to that job when your green card is approved you can actually have simultaneous jobs with several different employers.

2. A green card is based upon a job offer which could be present or future. So for example, if you are working for employer A it can be a job offer for a present job or they could be offering you a promoted position. More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Watch Video on this FAQ: New regulations, effect on layoff after I-140 approval

Video Transcript

1. Having an I-140 approval that stayed in existence for 180 days does not protect your current status by itself so with the new rule you've got that 60 day grace period to file for an H-1 or any other kind of change of status after the layoff so you have got that 60 day grace period you could try applying for a tourist visa if nothing else works out.

2. Yes. You can use Compelling Circumstances EAD. See my blog for more details.

More...

Note: This is a verbatim transcript of the referenced audio/video media delivered as oral communication, and, therefore, may not conform to written grammatical or syntactical form.

Question 1: Redo the PERM or just the I-140. If redoing the PERM again then what's new in this regulation? 

Answer: After 180 days, you can extend H-1 even if 140 is withdrawn.

Question 2: It seems that there is no easy provision for EAD/AP for approved 140 applicants. So is there any point in waiting for this rule or Should I consider Visa stamping is only option for traveling outside US? Please suggest as I waited for a year or long thought they are going to give AP.

Answer: Your observation about EAD/AP is correct- no easier. I will be surprised if USCIS changes these proposed rules in any significant manner when they finalize.

Question 3: If I have consumed my 6 years of H-1B and I have approved I-140. If I go to India and of some reason I got stuck in India. After a while I want some other employer to file my H-1B petition other then with approved I-140 employer. Do the new employer can apply for my new H1b cap exempt petition based on approved i-140 from my old employer. OR New H-1B petition from the new employer comes under H-1 cap count?

Answer: You have raised two separate issues. One, the I-140 can be used to extend your H-1 through ANY employer, if it is not withdrawn within 180 days of approval. Two, you are exempt from H-1 cap if your H-1 was approved any time within the last 6 years.

Question 4: Is there any provision for promotions internally within a company that filed the petition and the I-140 is approved more than 180 days previously?

Answer: These regs will only clarify (I am not sure they really do that) what "same or similar" jobs are. That concept is crucial when your I-140 has been approved and I-485 has been pending 180 days. At that time, you can accept a same or similar job anywhere, including within the same company, and NOT have to start your green card all over again. That comes under the topic of AC21 portability.

Question 5: Is direct portability of I-140 across multiple employers, ever possible. because I-140 is a property of the Employer and not the Employee (unlike 1-485) ?.Can we suggest any other creative options, of working around this legal hurdle. a. Can PERM be made portable across multiple employers. So employees donot have to go through the hassle of the PERM filing, repeatedly. This will save, almost 4 months of pre PERM filing effort and another 8-10 months of PERM processing window.

b. Or, can the I 140 be made an Employee’s property after 180 days it is approved. If that can be done then portability of the same may be legally possible across different Employers

Answer: The Priority date IS the "property" of the employee, NOT of the employer. So, an employee can port it to any job, anywhere, any number of times. But, I do not think they are excusing us from having to refile the PERM.

Question 6: Does the 60 day grace period is accepted in this case; H-1 Ext filed before expiry of I-94, then Current H-1 and I-94 expired, then H-1 Ext denied. Can we use 60 day grace period for filing new H-1 with new employer? In what cases does this 10 day validity before and after petition dates is used. The 60-day grace period appears to apply only in those cases where an approved H-1 employment abruptly comes to an end. The proposed regs say, upto 60 days may be given: "on the basis of the cessation of the employment on which the alien’s classification was based".

Answer: The 10 days allow you enter (but, not work) upto 10 days before the date your "validity period" (approval of petition) begins, and another 10 days to leave the USA (but, not work), after that period ends.

Question 7: Emp A - I-140 Approved and Moved to Emp B. Got i-140 with Emp B and priority date retained. submitted Emp A Experience letter while fling PERM. Now I want to move to Emp C. Do I still need to get experience letter from Emp B? If I am not able to get experience letter from Emp B, Can Emp C file PERM. if so and filed new PERM and I-140 with Emp C, Can I still retain priority date even though if its not same or similar job?

Answer: There are two fundamental principles that you need to apply to your case:

1. Priority date transfer does NOT require that your jobs must be same or similar.

2. Experience letters are NOT required for priority date transfer or retention. 

Question 8: Now that it is clear that there is almost nothing much in the so called reform, how can the immigrant community represent themselves forcefully, while the public comment period is in place? I understand that each one of us can go and put our comments, but is your firm, or someone else, planning to represent us? For lack of proper words, these so called reforms are a piece of trash, and only done to pretend as if reforms are taking place. It could not be worse actually. 

Answer: There is a limit on what USCIS can do without action from the Congress. You can certainly write your comments and several organizations will place their comments on the record as well. NORMALLY, USCIS does not change the rules much once they have been proposed. I think US immigration policy in "skilled" immigration is distressingly short-sighted. Our adopted country does not recognize the value brought in by us.

Question 9: My I-140 already withdrawn/revoked after 180 days of initial approval date. Now after implements new rule, will it apply for my case to extend my H-1 beyond 6 years?

Answer: I cannot say for sure whether USCIS intends to apply these rules retroactively. I hope they do. 

Question 10: Can you comment on what date will this become effective ? Is it after the comment period is over?

Answer: The effective date is unpredictable. Usually, it is a few months after the comments are over. 

Question 11: I need to clarify regarding the I-140 EAD for H-4. If the principal applicant has I-140 approved but the priority date for that category and country in the visa bulletin is more than 10 years back, Can the dependents, such as H-4, apply for I-140 EAD without the documentation for compelling evidence? If no, what are the examples of compelling evidence?I think the regulation does very little incremental for the EB categories. As mentioned, it provides clarification rather than provide more flexibility to the household or family of EB categories. I am disappointed with the revisions that have been made.Also, the compelling evidence was not required till now. What happens to those H-4 EADs which were issued since USCIS started applications from May 27, 2015? How would those H-4 EADs which are approved on the basis of I-140 approval of principal applicant be dissolved?Also, if the spouse moves from H-4 to H-4 EAD. Can he/she move from H-4 EAD to H-1B or any other non-immigrant category? Does the form I-539 allows movement among all categories?

Answer: H-4 EAD does NOT require compelling evidence. That is a different rule: http://www.immigration.com/blogs/form-i-140-form-i-765/h-4-ead-rule-cont...

I-594 does allow movement between all categories. H-4 to H-1 is definitely no problem. I agree; I am not too thrilled with the regs. But there is a limit to what Pres. Obama can do, folks. 

If you are not a US citizen, you need to adopt the child and then to possess custody of the child for 2 years (as far as I remember). Then the child can come here on H-4 or a derivative green card. 

FAQ's Updated on 21 September 2015 

FAQ 1. I am on the H-1B visa and my spouse on F-1. When my Priority date is eligible is it ok to apply for I-485 for me and my wife given she is on F1 or she has to be on H4 before we can apply for i485? If it is ok to apply with her F1 status, are there any possibilities that she can have issues in the future if she wants to get back to H-4 with a ending I-485?

Answer: The law does NOT require that the spouse be on a derivative visa (like H-4 or L-2, if you are on H-1 or L-1) to file AOS through you. BUT, F-1 presents some potential issues that should be discussed with the school. 

FAQ 2. My sincere thanks for your service. I had one quick question. I am on consular processing currently outside USA. My priority date is July 2010. My application is with NVC (National Visa Center). Do I need to submit my paper work for EAD, will I be eligible EAD ?

Answer: You need to wait till NVC asks for papers, and no EAD, sorry.

 FAQ 3. Do you anticipate any date movement of the new date for I-485 eligibility for EB2 India? Also, are there any chances that this date will also retrogress?

Answer: I think dates are likely to move in both directions: retrogression as well as advancement.

FAQ 4. I filed for my 1-485 concurrently before I got married, now as per the new set of dates. In the October visa bulletin, I am eligible for filing Employment based visa application. Can I add my wife (who is currently on H4) to my application, after 1st Oct,15? Or do I need to wait for a notification before doing so?

Answer: Ideally, wait till receipt. You have all of October to file AOS.

FAQ  5. I have been waiting last 6 yrs and recently I booked h1b stamping interview at Hyderabad thinking that dates won’t move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AD, AP how long does it take? Not sure should I go for stamping or should i wait for few months. 

Asnwer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

FAQ's Updated on 14 September 2015 

FAQ 1. My PD is December 2010. Will file for I-485 next month. My wife is travelling to India on Sept 26. Is it OK to add her while she is travelling (technically she will be in India next month). If not, she will come back March 2016. Can I file for her later and file only mine next month? 

Answer: She has to be in the USA when 485 is received by USCIS.

FAQ 2. From the USCIS point it seems that this bulletin was the last action item on Obama executive order for Empl based immigration,please let us know what do you think?

Answer: I think there should be more. An explanation of promotion not being fatal to an employment-based green card, etc.

FAQ 3. My priority date is April 2013. I left the previous employer and he revocked my approved I-140 . I got copy of approved I-140 and revocation letter from USCIS . When my current company will file I -140 , will I able to retain my old priority date ?

Answer: No. The current thinking of the USCIS is that you will lose your PD. I am sorry. 

FAQ 4. My Priority date is Jan2011 (EB2) and it is current now and it is with company A. Now I have moved to company B and they are in the process of filing Perm. And my previous I-140 is not withdrawn by company A. So my question is can we apply for I-485 based on company A's I-140 approval without even involving company A and then after 180 days can we use AC21 and port to company B. At this point i cant leave job at Company B since it is Fulltime. Please advice.

Answer: You must not file I-485 without a genuine job offer from the I-140 sponsoring employer.

FAQ 5. My Priority date under EB2 is June 9, 2011 with my Old Employer and my I-140 was approved on March 7, 2012 and stayed with that company till Nov 2014 and in dec 2014 moved to a new company, Can I file for I-1485, EAD and AP on October 1, 2015 and my Old Employer is ready to give offer letter and here I see you have mentioned to Mr. Pavan that you can only apply AOS, does it mean Adjustment of Status which Includes filing of I-1485 along with EAD and AP or only I485 ? 

Answer: If you are entitled to file I-485, you are ALSO entitled to file AP and EAD.

FAQ 6. Perhaps a mute point - but promised myself I will have this clarified by you. My priority date is in May 2011 - but that PERM and I140 are from previous employer. Current employer hasn't filed PERM yet (it's a non-profit org and things move slow I guess). My spouse has her PERM and i140 (priority date in 2014) from her current employer.

1) Can I use my previous employers i140 to file i485?

2) Can my wife use my PD and file for i485? 

Answer: 1. Only if you have a genuine job offer letter from previous employer.

2. No. 

FAQ 7. Hi, my priority date is April'2011 in EB2 and based on recent employee based priority date for EAD, my date is become current. I am going to India on October 29th. I am planning to file 485 and then leave for vacation. Will that be a problem, kindly sugget.

Answer: Travel after filing I-485 is a problem only if you do not have a valid H-1 visa stamp.

FAQ 8. Can new employer re capture OLB priority date in case old employer revocked approved I 140 ? 

Answer: A revoked I-140 takes away the PD.

FAQ 9. There is I-140 EAD petition blog(regradless of any categories) is going on through out many website. Is it going to get approved this year that all approved I-140 folks are eligible for EAD? Do you have any insight on this? may be this could be scam? 

Answer: That was the original plan of Obama Admin: when you file 140 (or 140 is already approved), you can filed 485 without waiting for PD. But that plan has not been implemented so far. 

FAQ 10. What I understand from the news on the Visa Bulletin is that we (Indians) can only file for AOS under EB2 category if the PD is before 1st July 2011. But even if the PD is before 1st July 2011, the I-485 will ONLY be processed/approved until the Priority date becomes current (which is May 2005). Am I right? 

Answer: A green card will be approved only if a visa number is available. EVERYTHING you see in the visa bulletin is an estimate.

FAQ'S as of September 10, 2015 

FAQ 1. My husband has his priority date Dec 2012. As per the new changes in VB , which might have progressive dates every month, Any idea how long it might take to reach to Dec 2012 ? 

Answer: I am not sure if this will be repeated every month and how will the movement continue.

FAQ 2. I have been waiting last 6 yrs and recently I booked H-1B stamping interview at Hyderabad thinking that dates wont move for next few years. My priority date is Jun 2010. If I start initiating process for EAD, AP how long does it take? I am sure should I go for stamping or should I wait for few months.

Answer: Your first priority must be to file and maintain the AOS. I would suggest you file AOS and plan your trip only AFTER you get AP.

FAQ 3. I have prior approved valid I-140 with previous employers with Sep-2010 as PD and my current employer has applied LC and waiting for approval. Can I apply for EAD with the previous employer I-140.

Answer: You can only apply for AOS if the old employer, in good faith, can provide you an offer of employment.

See clip from Attorney Rajiv S. Khanna's conference call video that addresses this question. 

https://www.youtube.com/watch?v=QvnIAm0nQJ8#t=808

FAQ Transcript

Yes you can apply for I-485 and EAD. Couple of things. You will have to be in USA on a legal status, probably on H-1. So if you are outside USA don't stop try to get H-1 because you can't enter on tourist visa. Let's get a step back and say Obama implements this plan, it gets implemented in few months down the line. We will actually have a guideline what to do for these cases. What will happen is most likely you will have to be in the United States in the legal status and apply for Adjustment of Status.  You can't do from outside USA. 

Can you enter on something like tourist visa and the answer is probably no because probably it is unacceptable to use tourist visa to come into the United States to do the Adjustment of Status . So H-1, L-1 are the best options. So, somewhere down the line you probably need a H-1, if Obama action kicks in and you want to apply for AOS.