The Importance of Maintaining Your H-1B Status

“You don’t need to extend your H-1B status, you’ve got an EAD!”

If I read such a statement on a message board, I might understand that since the author was not trained as an immigration attorney, this may seem logical to him.  However, when someone who is seeking my advice tells me that his former attorney told me this, I cringe.

Why should someone with an Employment Authorization Document (EAD) not use it, but instead keep renewing their H-1B status?

Consider this real life example: Last week, an Indian professional had a legal consultation with me.  He had been in H-1B status since December 2001.  His employer had obtained the approval of a PERM application on his behalf.  In July 2007, when all the EB visa numbers became current, his employer submitted an immigrant visa petition (I-140) on his behalf in the EB-3 category. Simultaneously, he, his wife and their two children submitted applications for adjustment of status (I-485).

The I-140 was approved, but due to the lack of visa numbers, the family’s I-485s remain pending.  Although the USCIS can not approve their I-485s, they are not barred from denying them.  His 18-year-old son received a Request for Evidence asking him to demonstrate that he had been in lawful status since he entered the U.S. as a B-2 visitor ten years before.

The problem was that the family had sent the son to live with his aunt and uncle in the U.S. when he was a young child.  When his six-month stay in the U.S. expired, no one ever extended his B-2 stay in the U.S. or requested that his status be changed to F-1 student.

Their question was “How could their son respond to the RFE?” My answer was that since the son had resided in the U.S. unlawfully for over ten years, he was ineligible to adjust his status to permanent resident.  However, if he departed the U.S. immediately to get an H-4 visa abroad, he would not be subject to the three or ten-year bars.  Only when a child turns 18 can he accumulate “unlawful presence” in the U.S. which, in turn, subjects him to the bars when he departs the U.S.  See

       http://www.shusterman.com/toc-nwlw.html

Once the son obtained an H-4 visa abroad, he could return to the U.S. to complete his education, and eventually adjust his status using section 245(k) of the law which provides that one can adjust status under the EB-1, EB-2 and EB-3 categories as long as one has not been out-of-status for over 180 days since his most recent admission to the U.S.

Problem solved?

I asked the father when his H-1B status was due to expire.  He replied that it had expired at the end of 2007.  I asked him why he had let it expire, and he replied that his attorney had told him, “You have an EAD, why bother extending your H-1B status?”

Not a very thoughtful answer coming from someone practicing immigration law.  As a result, his son will be separated from the rest of the family, perhaps for many years.  This is tragic because it would have been so easy to avoid this outcome had the father simply extended his H-1B status.

Another reason to continue to renew one’s H-1B status is USCIS’ questionable interpretation of section 245(k).  If a person’s application for adjustment of status is denied for any reason, the USCIS holds that the person may not renew their I-485 unless they have maintained their lawful “nonimmigrant” status while their application for adjustment of status is pending.  In such cases, persons are often forced to leave the U.S. simply due to their failure to extend their H-1B status.

For these and many other reasons, it always wise to maintain H-1B status until one’s application for adjustment of status is approved.

For more information regarding H-1B status, see our “H-1B Page” at

                                  http://shusterman.com/toc-h1b.html

Comments

[Green Card Visa]

It is pretty unusual, and rather unfortunate, that this attorney gave them such inaccurate and damaging information. If this were my case, I would report the attorney to the Bar Association to see if they felt there was any appropriate recourse.

[cheap eve isk]

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

[Rajiv S. Khanna]

Good point Carl. Two other reasons as I see are:

One, EAD issuance was erratic and CIS had discontinued issuance of interim EAD's (that is, if in 90 days your EAD is not issued, you could walk with a infopass appointment to your local CIS office and get an EAD). Thus, EAD's were unreliable and given for only a year. You could have interruptions in your work.

Two, if your AOS were to be denied (even in error), you would have no way to work, because the EAD goes with the AOS. And since there is no appeal against AOS denial, only an MTR can be filed. While the MTR is pending, you are not given a work authorization (as of now, July 2008). In addition, you would not be able to get an H-1 extension beyond the original six years because nothing is pending and "final action" has been taken on your green card. This could result in a situation that can be very dangerous. You do not have an H-1, a pending MTR gives you no legal status to sty in the US. Not only can you not work, you are deportable and you are accruing illegal presence even though the MTR is pending.

While CIS has done well to eliminate the first concern by reinstating the interim EAD issuance policy, the second concern still bothers me. While erroneous denials are few an far between (thank heavens), they do, nevertheless, occur. So, just maintain your peace of mind by keeping your H-1 active. That is my opinion. Reasonable people can easily argue against this and perhaps, their points of view may be just as valid.

All the above holds true, whether or not you intend to use AC21 portability.

[GW]

How about changing (reinstating) principal back to H1B status? I have had success in similar situations.

[Dan]

Great Explanation, thanks for hte post sir.