Using the EAD as an Option for Employment26 Oct 2012
Foreign nationals who have filed adjustment of status applications (I-485s) can generally apply for employment authorization documents (EADs). However, many of these foreign nationals are already working in the U.S. pursuant to valid nonimmigrant status, such as H1B. Attorneys at the Murthy Law Firm frequently receive inquiries from people in this situation, wondering whether they should continue to work under their nonimmigrant status, or if they start using their EADs. As it is with so many questions in immigration law, the answer to this question is, “It depends!”
Pros and Cons of Using the EAD for Employment
The EAD provides unrestricted employment authorization. It is a valuable privilege, and foreign workers with EADs often find that their employment options expand once they have the document. The questions generally asked are whether the H1B should be extended if a person has an EAD or whether a person should accept a job using an EAD. Our answer to this is that, if a person allows the H1B or other nonimmigrant status to lapse they are relying solely on the I-485 as their basis for being in the United States.
With the I-485 pending, the foreign national is considered to be in a period of authorized stay in the United States. S/he is eligible to extend the EAD as long as the I-485 remains pending. Travel is also possible, if the applicant also has advance parole (AP). Many people have joint EAD/AP cards, but they require two separate applications and, depending upon timing, some are issued as two separate documents.
Using the EAD and relying upon the I-485, means that there is no underlying nonimmigrant status. Thus, if the I-485 is denied for some reason, the person will be out of status. The options at that point depend upon the reason for the I-485 denial and other factors, including whether there are any options through a spouse. This is a very different situation from an I-485 denial for a person who still has an H1B or other nonimmigrant status. In that situation, after the I-485 denial, the foreign national would still have the nonimmigrant status to fall back on and would usually have more options available to them.
Considerations in Using the EAD
Put simply, generally, it is safer to maintain a nonimmigrant status rather than relying solely on the I-485 and EAD. However, there are valid reasons that many decide to take the calculated risk. For some, there is no choice, as the employer will not extend the H1B status after the person has the EAD. Still others may have faced layoffs and other job issues, and have had to move to a new employer using the EAD.
For many, it is a choice and a balancing of risks. Once the I-485 has been pending for 180 days, applicants often start to consider job changes under the American Competitiveness in the 21st Century Act (AC21). All employers in the United States must accept EAD holders; employers are not required to sponsor H1Bs or other nonimmigrant categories. So, the universe of potential employers increases once one has an EAD. This often leads to choosing between working on the EAD on one side and passing up possible career-advancing opportunities to keep non-immigrant status on the other. For that reason, many people ultimately decide to work on the EAD at some point.
When weighing the choices, it is a good idea to try to assess whether there are any enhanced risk factors in the applicant’s I-485 case. While all cases have potential weaknesses, some cases are more likely to run into problems than others. The attorneys at the Murthy Law Firm can help to assess case strengths and weaknesses, based on our many years of experience in providing I-485 representation, as well as our knowledge of current trends. Those considering the issues surrounding the use of the EAD discussed in this article may wish to schedule a consultation with one of our knowledgeable attorneys.
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