I am filing an EB3 downgrade case. I read online that, if I use my I-485 EAD (as opposed to staying on H1B,) I will no longer be eligible to upgrade back to EB2. Is that true?

Answer

For our clients who are on H1B, we normally recommend that they remain on H1B until the green card is issued, if possible. The main reason for this is as a simple precaution in case the I-485 is denied. (i.e., If an I-485 applicant maintains H1B status, and the I-485 is denied, this typically would not prevent the person from remaining in the U.S. and continuing to work in the H1B position.) Working based on an EAD, rather than maintaining H1B status, however, would not necessarily prevent a person from filing an EB2 “upgrade” case. (15.Oct.2020)

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