本人目前H1B第四年，I140去年早就过了，I485正在做万恶的name check。工卡申请两礼拜前刚递出去。对于I485没批下来而H1B又即将到期的情况该怎么办，很多人象我一样有不少疑问。下面是我的移民律师给出的解释和建议，在此大家分享一下。
When an alien applicant files his or her I485 application, this applicant is given an opportunity to file I765 (Employment Authorization Card) and / or I131 (Travel Document) by the immigration laws.
If the applicant uses I765 or I131, he or she will lose his or her current non-immigrant status (such as H1B, F1, F2, H4, etc...)
However, even the applicant loses his or her current nonimmigrant status, he or she can still stay in the United States lawfully because pending I485 application authorizes the alien applicant to do so.
The only risk is, in case that the I485 is denied, the alien applicant has to leave the United States. If the alien applicant wants to come to the United States again, he or she must apply for a new nonimmigrant visa from the U.S. Consulate overseas.
Based on the above explained laws and regulations, we make the following suggestions:
1. The Principal Applicant (the one that files I140) does not apply for I765/I131, unless it is absolutely necessary. If the Principal Applicant maintains his or her lawful nonimmigrant status (for instance, H1B), the entire family will have a bacdkup plan in case that the I485 applications are denied.
2. Family dependents such including spouse and children may apply for I765/I131 if they need to work or travel. If they use I765 (EAD card) to work or I131 to travel, their pending I485 applications give them lawful status to stay in the U.S.;
3. If their I485 applications are approved, they will have no problem. If their I485s are denied, they only need to go out of the U.S. and applies for a visa to come in based on the Principal Applicant's nonimmigrant status. If by that time, the Principal Applicant has H1B status, the family dependents will apply for H4 visas.
Note, they cannot change of their status in the U.S. because there will be gap between her current nonimmigrant status, which will end by the time they use their EAD cand or travel document, and their future intended H4 status, which they need to apply when their I485s are denied.
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