H-1B vs. EAD/AP – some thoughts
Posed 05-29-2008 at 10:18 AM by Ron Gotcher
People ask me every day whether they should use their EAD cards or H-1B classification for work authorization. In most instances, I recommend that they use EAD cards. I’d like to take a moment to discuss the reasons why I make this recommendation.
There is no clear “law” on the subject. That is, nothing in the law requires an applicant for adjustment of status to use one or the other. The “best” solution is always the one that best satisfies the applicant’s unique needs. With this in mind, let’s examine the pros and cons of each.
Maintenance of H-1B status is not without cost. The CIS filing fees are $320, plus $500 for the anti-fraud fee it is a first filing (such as an employer transfer), and $750 to $1,500 for the ACWIA fee. This does not include attorney’s fees. There are two other “costs” that must be counted as well. If you travel, you must have a valid H-1B visa to re-enter. This means that you may have expend time and money renewing your H visa. Also, with an H visa, you may not accept work from anyone other than your petitioning employer. Otherwise, you are in violation of your H status.
Historically, I’ve heard three main arguments I’ve in favor of using H-1B. First, there is the “just in case” argument. To me, this falls into the “monsters under the bed” or fear of the dark kind of superstitious dread argument. “I don’t know what might happen, but I want to keep my H-1B just in case.” I’ve always felt that if you can’t articulate the reason for doing something, it isn’t a very good reason.
The second reason is a concern that if the applicant’s I-485 is denied, the applicant can revert to H-1B status. I believe this to be a specious argument also. Most I-485 denials result from I-140 denials. If your I-140 has been approved, the odds of your I-485 being denied drop to almost zero. The two remaining reasons for I-485 denials are status violations prior to filing and fraud. Both of these reasons impact H-1B validity as well and if an I-485 is denied for either reason, it is doubtful that the applicant would be allowed to resume H-1B status.
The third reason, and in my opinion the only valid reason, arises in unusual situations where the principal applicant has applied for adjustment of status but his or her spouse hasn’t. In such cases, it is essential that the principal applicant maintain H-1B status so that the spouse remains eligible for H-4 status.
There is one other important consideration with respect to maintaining H-1B status while applying for adjustment of status (AOS). Three times in the last month I’ve become aware of individuals who elected to stay in H status while applying for AOS and traveled abroad using their H visas. Two of them were laid off unexpectedly while abroad, the other saw his H petitioner go out of business suddenly. All three were left high and dry overseas with no way to return to the US. If they tried to use their H visas, they would be guilty of visa fraud at entry and thus ineligible for adjustment of status.
Finally, AOS applicants who have given up H status should understand that there is nothing to prevent them from re-applying for H classification should something go disastrously wrong with their AOS application. If the applicant is still eligible for H classification, there is nothing to prevent them from re-acquiring it later.
Employment authorization documents (EAD) are presently valid for one year at a time. The CIS is about to extend this validity to three years. The same is true of advance parole (AP) documents. The EAD/AP combination provides an applicant with a simple, inexpensive alternative to trying to maintain H status while applying for AOS. More importantly, EADs give an applicant job flexibility. With an EAD, an AOS applicant who wishes to exercise his or her right to job portability need only show an EAD card in order to accept new employment immediately. Similarly, an applicant who travels and uses AP as a re-entry document need never bother with having to make an appointment and apply for a new visa while abroad.
If someone wishes to maintain their H-1B status while they are applying for AOS, that is their right. They should do so, however, only if they understand these facts and still wish to maintain H status. They should not do so out of fear of the unknown or a misunderstanding of the facts.
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Fortunately, I've never received an AOS denial for one of my clients. I've seen them issued to other people, however, and they typically tell the applicant to leave the US within ten days. That language does not say "But if you hold valid nonimmigrant status you may stay." It just says get out of town within ten days or we will arrest you and put you into removal proceedings.
This means that those who have their AOS applications denied are flagged as people who need to leave. Personally, I wouldn't want to be in a position of having to try to persuade an ICE agent that notwithstanding my AOS denial, I'm really here legally because I maintained my H status. I suspect that the response would be to take you into custody and let you sort it out in front of a judge.
For this reason, if someone has been maintaining H status, and their AOS is denied, they need to leave the country and then re-enter. This will avoid the possibility of arrest as an unlawful overstay.
If you were in H status, and you let it expire, you can still apply for the remainder of the time you have left in H status (up to six years) even after your AOS is denied. You won't go back into the quota unless and until you go abroad for at least a year.
There is something else to remember if you are trying to maintain H status and expect to go back into it if your AOS is denied. When your AOS gets denied, you lose your eligibility for post six year extensions of H status. If you have been buring up your H time while waiting for an AOS adjudication, you will not recover that time. Absent the special circumstances described in AC21, you are only entitled to six years of H eligibilty. Do you really want to burn that up while waiting for an AOS adjudication?