H1 to H4 and work on EAD?

[saloni]

I am currently on H1b visa and have filed I-485 as primary. My spouse is also on H1B and is derivative. We both have EAD's but are still maintaining H1B status.
My employer is reluctant to file H1B extension as there are lots of RFE's and client/vendor letter requirements and paper work he does not want to do.
He has asked me to change my status to H4 and work on EAD.

Can I work on EAD without filing H1B-H4.

or
After the new memo regarding unlawful status, it is better to file H1 to H4 and continue working on EAD for my employer.
Will this affect anyhow on my chances of approval of my AOS?



Appreciate your response.

[martinvisalaw]

Originally Posted by saloni

Can I work on EAD without filing H1B-H4.
or
After the new memo regarding unlawful status, it is better to file H1 to H4 and continue working on EAD for my employer. Will this affect anyhow on my chances of approval of my AOS?

You cannot be in H-4 status and work, even with an EAD. Either you have H-4 status and don't work, or you work on the EAD. H-4 status does not allow for work, even with an EAD. If the employer won't extend your H-1B, you just ned to make sure that you always have a valid EAD and an Advance parole so you can travel.

[saloni]

I thought as per the new memo it is advisable to extend your non-immigrant status even if you have filed your AOS and work on EAD.

I know many people who were on H4 and started working as soon as they filed AOS and got EAD's, now in this case there I-94 issued for H4 is still valid.
When their spouse extended their H1B's, they did also extend the H4 petition to get new I-94's.

[roseball]

Originally Posted by saloni

I thought as per the new memo it is advisable to extend your non-immigrant status even if you have filed your AOS and work on EAD.

I know many people who were on H4 and started working as soon as they filed AOS and got EAD's, now in this case there I-94 issued for H4 is still valid.
When their spouse extended their H1B's, they did also extend the H4 petition to get new I-94's.

Like the attorney mentioned, you can't maintain H4 and AOS status at the same time. You can file for H1 to H4 COS but as soon as you use your EAD and start working, you will lose your H4 status. Having a valid H4 I-94 does not mean you still maintain H4 status. You can't work on H4, period. EAD gives you authorization to work based on your pending I-485, but then using your EAD will put you back in AOS pending/Parolee status. Hope this helps...

[fcres]

This is news to me also. Once my current H1 expires I'm also planning to work on EAD and change to H4. One attorney adviced me to do that so that in case something happens to our I-485, I'll be on H4 and be still on status in this country to appeal for an MTR.

Another attorney told me to just work on EAD, no need to file H4 but I can if that will give me a peace of mind.

But what this attorney described here make sense too. If working on EAD invalidates H1, it should invalidate H4 also. But then again like the OP said I have known people who were on H4 and started working when they got EAD and extended their H4.

Is it different in case its the beneficiary of the I485 thats moving to H4?
Saloni, have you gotten any more info and could you please provide the link to the memo you are talking about?

[roseball]

Originally Posted by fcres

This is news to me also. Once my current H1 expires I'm also planning to work on EAD and change to H4. One attorney adviced me to do that so that in case something happens to our I-485, I'll be on H4 and be still on status in this country to appeal for an MTR.

Another attorney told me to just work on EAD, no need to file H4 but I can if that will give me a peace of mind.

But what this attorney described here make sense too. If working on EAD invalidates H1, it should invalidate H4 also. But then again like the OP said I have known people who were on H4 and started working when they got EAD and extended their H4.

Is it different in case its the beneficiary of the I485 thats moving to H4?
Saloni, have you gotten any more info and could you please provide the link to the memo you are talking about?

The reason why this is a grey area is because USCIS has no means of tracking whether you maintained a valid H4 status (did not work) or used your EAD (put EAD info in form I-9)from your pending I-485. So they keep extending your H4 status whenever it is requested as a supplement to primary beneficiary's H1 extension. But as with any other case, its always upto the applicant to prove his or her valid immigration status in the country. As far as the rules go, you can either be on H4 status and not work, or work on EAD and be in AOS status. Hope this helps...

[martinvisalaw]

Originally Posted by roseball

Like the attorney mentioned, you can't maintain H4 and AOS status at the same time.

To clarify some misunderstandings - you can have H-4 and an AOS pending. You can't have H-4 and work on an EAD.

Someone else said "If working on EAD invalidates H1,..." No, working on an EAD does not invalidate H-1B status, unless the work is for a different employer to the H-1B petitioner.

Another poster: "I know many people who were on H4 and started working as soon as they filed AOS and got EAD's, now in this case there I-94 issued for H4 is still valid."

No, the H-4 status is not valid. I wonder if the H-4 applicant completed the I-539 correctly and stated that s/he was working. There is a specific question about this on the 539. If the applicant said s/he was working, I would be very surprised if CIS extended the H-4 status.

[AK_GC]

Or can we work on EAD and let the H1B lapse. The employer is the same. Thanks for the information!

[mantagon]

The attorney and Roseball are correct - maintaining H4 status and working on EAD are mutually exclusive!

Your options are:
(1) Do not extend your H1. Contiinue working on EAD. Your status will be AOS.
(2) Convince your employer that if you don't extend the H1, then in the event that your I-485 is denied for some reason in the future, then you will be immidiately out of status and cannot work thereafter.

Hope this helps!

Originally Posted by saloni

I am currently on H1b visa and have filed I-485 as primary. My spouse is also on H1B and is derivative. We both have EAD's but are still maintaining H1B status.
My employer is reluctant to file H1B extension as there are lots of RFE's and client/vendor letter requirements and paper work he does not want to do.
He has asked me to change my status to H4 and work on EAD.

Can I work on EAD without filing H1B-H4.

or
After the new memo regarding unlawful status, it is better to file H1 to H4 and continue working on EAD for my employer.
Will this affect anyhow on my chances of approval of my AOS?



Appreciate your response.