- The U.S. Congress allows only a limited number of employment-based green cards to be distributed per year and per country
- It is based on the country of birth, but not the country of citizenship
- Hence, for more populous countries such as India and China, there isn’t enough green card available
- When the number of applicants exceeds the number of green card availability, it gets “backlogged”
- Hence, in order to determine who gets a green card at what time, foreign nationals seeking employment-based green cards are assigned priority dates
- The priority date is based on the date their employer first filed the PERM application or I-40 petition
- They can file for adjustment of status when the priority date is current
- Priority can be found in Visa Bulletin, published monthly by the Department of State
What Are the Additional Benefits of Filing I-485?
- When you file the I-485 application, the U.S. law grants you lawful status as an adjustment applicant
- However, merely applying for your green card does NOT give you work or travel authorizations
- There are two ways that you can obtain these authorizations
- You can keep on extending your H1B or H4 status
- This process is unaffected by your green card application
- You can also file for work authorization by filing Form I-765, often referred to as employment authorization document or EAD, and travel authorization or FORM I-131 referred to as Advance Parole or AP
- These documents will allow you to work in and travel outside of the U.S. while your I-485 is pending.
Each Approach has Pros and Cons, we will also discuss a few Important distinctions between “Obtaining” and “Using” EAD and AP documents
A. Is there a Difference Between Obtaining an EAD and Using it?
- Getting an EAD and using an EAD are two slightly different things
- If you use your EAD, you have to sign an I-9 form and mark the employment eligibility as EAD than H1-B or L1-B
- You can change your status from your H1-B status to EAD by contacting your HR department
B. What is the Difference Between Obtaining an AP and Using an AP?
- Similarly, getting advance parole (AP) and using an AP are two entirely different things
- Using an AP means leaving the United States and then using your AP to enter the U.S. as a parolee instead of the visa to enter U.S.
- An advanced parolee cannot work in the USA without an EAD
- Hence AP is basically an additional document for you enter the USA
Will My Immigration Status Change?
- Receiving an EAD/AP will not change your nonimmigrant status
- You should pay special attention to remain in status, and not accrue unlawful presence
- If you are in the U.S. without any status, you are considered to be here illegally, and U.S. Citizenship and Immigration Services (USCIS) may deny your green card application for that reason alone
- As long as a person maintains an H1-B or L1 status (H/L status not expired, H1/L1 holders working only for their sponsoring employer(s), and H4/L2 holders not working on EAD, he/she can travel outside the U.S. and come back without the need for AP
- Please note H4-EAD is not comparable to this EAD in this context, it is tied to your H4 status and not directly related to I-485
Pros and Cons of Using your AP and EAD
Positive Side of AP and EAD
- There is no harm in applying for an AP and EAD
- It allows the H4 spouse to work for any company
- The primary H1-B applicant can take up another part-time job or side business without the need to file for a concurrent H1-B
- Some H-1B professionals use an EAD (and terminate H-1B) on purpose to save H-1B time, so if something happens with the current employer they are able to pick up the remaining period of the 6-year H-1B limit through another H-1B approval with the new employer
- Even if the I-485 applicant is not planning to change employment as per the AC-21 rule, take another part-time employment, or have a spouse on H4 that would like to work, it is advisable to apply for an EAD and AP for contingency situations
The Downside of Using your EAD and AP
- If you opt for EAD/AP status, a spouse (and children, if any) acquired after using your AP may not join on H4, and cannot resume H4 status if your I-485 is denied
- Applicants maintaining H1-B status can travel immediately after filing the I-485, provided they have a valid H/L visa in their passport, or they can obtain a new one
- Advance parole applications take at least 3 months, during which you can’t travel if you are not in current H1-B, L1, or H4 status
- H-1B/L1 workers who file a timely application for an extension of stay may continue employment for 240 days while the U.S. Citizenship and Immigration Services (USCIS) adjudicates the petition
- However, you are not allowed to work on an expired EAD while your renewal EAD application is pending, it is 180 days according to the new rule
- You have to apply for EAD every year
Frequently Asked Questions About “Using” EAD
- If I apply for a Social Security number (SSN), is that considered using an EAD?
2. If I open a bank account using my SSN, is that considered using an EAD?
3. What exactly is considered using an EAD?
When you are employed and have submitted a copy of your EAD for filing I-9 as a part of the requirements.
4. If the primary applicant starts working using an EAD, can the dependent spouse still maintain H4 status?
No. Because the H4 status is dependent upon the primary applicant maintaining H4 status, the dependent spouse would no longer have an H4 status if the primary applicant does not have H1-B status.
5. What if the spouse who used the EAD does not want to work anymore, but want to regain H4 status?
- The dependent does not automatically regain h4 status.
- As long as the primary applicant is still maintaining valid H1 visa status, the spouse/dependent could go out of the U.S. and enter again on a valid H4 visa to regain H4 status.
It is great to have both H1-B, L1, or H4, and I-485 if possible. It is a great contingency, if there is a sudden job loss or the possibility of being out of status, immediate availability of an EAD and AP would definitely help you avoid any violations.
If you have questions about the adjustment of status or have questions about the Green Card procedure in general, you can schedule a consultation with us: